On Dec 14th, 2017, U.S. Citizenship and Immigration Services (USCIS) announced it is taking steps to implement the International Entrepreneur Rule (IER), in accordance with a recent court decision.
Although the IER was published during the previous administration with an effective date of July 17, 2017, it did not take effect because the Department of Homeland Security (DHS) issued a final rule on July 11, 2017, delaying the IER’s effective date until March 14, 2018. This delay rule was meant to give USCIS time to review the IER and, if necessary, to issue a rule proposing to remove the IER program regulations.
However, a Dec. 1, 2017, ruling from the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke vacated USCIS’ final rule to delay the effective date. The Dec. 1, 2017, court decision is a result of litigation filed in district court on Sept. 19, 2017, which challenged the delay rule.
The IER is an important opportunity for foreign nationals as well as for the US economy as it grants "PAROLE" to certain foreign national entrepreneurs and it opens a window for certain businesspersons to come to (or remain in) the U.S. For more information about the IER, please see the new section added to 8 CFR 212.19 which provides guidance with respect to the use of "parole for entrepreneurs of start-up entities based upon significant public benefit".
The IER was published during the previous administration to provide an unlimited number of international entrepreneurs a new avenue to apply for parole, enter the U.S., and use American investments to establish and grow start-up businesses. Parole is a discretionary grant made by the Secretary of Homeland Security and is granted only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. The rule established new criteria to guide the adjudication of parole applications from certain foreign entrepreneurs, providing them with temporary permission to come to the country. The rule did not afford a path to citizenship, which only Congress can do.
On Jan. 25, 2017, President Trump issued Executive Order 13767, Border Security and Immigration Enforcement Improvements, which requires the Secretary of Homeland Security to ensure that parole authority is exercised only on a case-by-case basis, and only when an individual demonstrates urgent humanitarian reasons or a significant public benefit due to the parole.
International Entrepreneur Program Eligibility
Entrepreneurs applying for parole under this rule must demonstrate that they:
- Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
- Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
- Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
- The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
- The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
- They partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
- Otherwise merit a favorable exercise of discretion.
A spouse or child of an entrepreneur applying for parole under this rule must demonstrate that he or she: - Is independently eligible for parole based on significant public benefit or urgent humanitarian reasons; and
- Merits a favorable exercise of discretion.
How to Apply
Filing Form I-941, Application for Entrepreneur Rule
- You must file Form I-941, Application for Entrepreneur Parole, with the required fees (including biometric services fees), and supporting documentary evidence in accordance with 8 C.F.R. § 212.19 and the Form I-941 instructions. The filing fee for Form I-941 is $1,200 and the biometric services fee is $85.
- Filing and obtaining approval of a Form I-941 application under this rule will not, by itself, constitute a grant of parole. If your Form I-941 application is approved, you must visit a U.S. consulate abroad to obtain travel documentation (e.g., a boarding foil) before appearing at a U.S. port of entry for a final parole determination. A Canadian national traveling directly from Canada to a U.S. port of entry may present an approved I-941 at the U.S. port of entry without first obtaining travel documentation.
Filing Form I-131, Application for Travel Document
- The spouse and children (unmarried, minor child under 21 years of age) of an entrepreneur submitting Form I-941 may file Form I-131, Application for Travel Document, with the required application fee and biometrics services fee, to request parole to accompany or join the entrepreneur. The Form I-131 may be filed concurrently with the Form I-941 or it may be filed separately.
- The filing fee for Form I-131 filed by the spouse or child of an entrepreneur is $575. A biometric services fee of $85 is required for applicants 14 through 79 years of age. For Part 2 Application Type, write “IER” in the margin of Form I-131. You must file Form I-131 with evidence demonstrating that you are the dependent spouse or child of an Entrepreneur Parolee or an Applicant for Entrepreneur Parole.
- Submit all of the following documents:
- A copy of a marriage certificate or birth certificate establishing your relationship to an Entrepreneur Parolee or an Applicant for Entrepreneur Parole.
- Unless filing the Form I-131 concurrently with the entrepreneur’s Form I-941, documentation indicating that the entrepreneur has a pending Form I-941 requesting parole, that such request was granted, or that the entrepreneur is a parolee. Such documentation may include a copy of:
- Form I-797, Notice of Action, indicating USCIS’ receipt of the entrepreneur’s Form I-941;
- The entrepreneur’s Form I-512L, Authorization for Parole of an Alien into the United States; or
- Form I-94, Arrival-Departure Record, indicating that the entrepreneur has been paroled into the United States.
Filing Form I-765, Application for Employment Authorization
- If the Form I-131 is approved, and the spouse of the entrepreneur is paroled into the United States, the spouse may then apply for employment authorization by filing Form I-765, Application for Employment Authorization. Children of the entrepreneur will not be eligible to apply for employment authorization under this rule. For Item Number 20, Eligibility Category, enter “(C) (34).” File Form I-765 with evidence of your parole status, such as your Form I-94, and evidence you are the spouse of an International Entrepreneur Parolee, such as a copy of the principal’s Form I-94 and a copy of your marriage certificate.
Note: If a Form I-765 is submitted to USCIS before the spouse has been paroled into the United States, the application may be denied and fees may not be returned.
If you should have any questions or need more information about the way that the U.S. Immigration and Nationality Laws may impact you, your family, your friends or your colleagues, please feel free to contact the U.S. Immigration and Nationality Lawyers at the NPZ Law Group – VISASERVE – U.S. Immigration and Nationality Lawyers by e-mailing to us at info@visaserve.com or by calling us at 201-670-0006 (x107) or by visiting our Law Firm’s website at http://www.visaserve.com