Posted in Advance Parole Travel Authorization, Employment-Based Immigration, Global Migration, I-9s, Immigration and Entrepreneurship, Immigration Regulations, USCIS
The Department of Homeland Security, through its
component agency, U.S. Citizenship and Immigration Services (USCIS), has issued
a proposed regulation to allow a qualified foreign citizen to gain entry
and be employed in the United States if he or she will engage in activities
that are likely to “increase and enhance entrepreneurship, innovation, and job
creation in the United States” with a “start-up” entity.
The
USCIS proposed regulation would not change any other means of gaining work
permission under the existing employment-based visa categories, e.g., the EB-5
immigrant investment program, immigrant visa classifications based upon, or
exempt from, PERM labor certification, or through family-based immigration
avenues.
Under the Immigration
and Nationality Act, parole (an immigration “term of art” having nothing
necessarily to do with the criminal laws) is a discretionary grant of
permission to enter the U.S. under narrowly prescribed terms. Parole is
not a formal “admission” to the country but a specially permitted
“entry.” Unlike a green card or work visa — both of which are considered
a legal “status” in the United States — parole can be automatically revoked by
immigration officials without mandatory notice to the parolee. USCIS
proposes that once the application for entrepreneurial parole is approved, the
applicant and family members must leave the U.S. in order to be granted parole;
they may not change to a nonimmigrant status within the United States.
USCIS proposes an
initial two-year grant of parole to a qualifying “International Entrepreneur,”
with one additional three-year renewal allowed. Under the proposal, the
entrepreneurial parolee may work only in a start-up entity formed within the
last three years in which s/he (a) will play a “central role in the operations
and future growth of the entity,” and (b) owns at least a 15 percent interest.
USCIS also proposes that the parolee’s spouse and children may be given
parole entry, and that the spouse can be granted open-market employment
authorization. The entrepreneurial parolee, however, may only be employed
by the USCIS-approved start-up entity. USCIS also proposes to amend its
Form I-9 (Employment Eligibility Verification) to allow a start-up entity to
accept an original foreign passport and Form I-94, issued by U.S. Customs &
Border Protection with the notation “PE-1,” as a “List A” document of identity
and employment authorization.
The pre-publication version of the rule and its preamble run to 155 double-spaced
pages. Once it is published in the Federal Register, expected in the next
few days, the public will have 45 days to offer comments. Proving eligibility
as an International Entrepreneur will require a $1,200 filing fee, completion
of an Application for Entrepreneur Parole (Form I-941) and the submission of
extensive evidence. USCIS will review the evidence and give a thumbs-up
approval or deny the application with no right of rehearing or appeal.
In order to qualify, the
parole applicant must show that the start-up entity has the “substantial
potential for rapid growth and job creation.” This can be established through
investments from established “U.S. investors (such as venture capital firms,
angel investors, or start-up accelerators).” The parole applicant may prove
this with evidence that the “entity has received investments of capital
totaling $345,000 or more from established U.S. investors with a history of
substantial investment in successful start-up entities.” USCIS proposes
that aside from the parole applicant, only U.S. citizens and lawful permanent
residents (green card holders) may invest in the start-up. A start-up entity
may employ no more than three entrepreneurial parolees, according to the USCIS
proposed rule.
Alternatively, the
proposed rule suggests that the submitted evidence should include proof of
grants or awards of at least $100,000 from local, state or federal government
entities that have “provided support for economic, research and development, or
job creation purposes.”
Venture capitalists and
foreign entrepreneurs — who have waited since November 2014 to see how USCIS
would articulate President Obama’s Executive Action announcing a proposed rule
— are likely to be disappointed. They may see the benefit of
entrepreneurial parole as too small and too short in duration in return for the
effort to establish the proposed rule’s very burdensome and narrow
requirements. Moreover, they may be disappointed to learn that the USCIS
proposal fails to take into account the harm associated with a revocation of
parole (whether based on material business changes or otherwise) and the
absence of any administrative or judicial review. Also disappointing is the
realization that the proposed regulation offers no pathway to lawful permanent
resident status.
Fortunately, however, if
USCIS receives compelling and substantiated comments within the next 45 days,
the final rule may become a more viable avenue to jump-start innovation, job
creation and economic growth. Only time will tell.
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