Although the end is near for entrepreneur parole under the International Entrepreneur Rule (IER), startup founders have alternatives to build amazing companies in the U.S.

After nearly a year of threatening to terminate the IER program, the Department of Homeland Security (DHS) made good on that threat last week: It published a proposal in the Federal Register to rescind the rule. Publishing a proposal in the register marks the first step in creating, changing, or ending a regulation.

 

Alternatives to Entrepreneur Parole

If you’re an international entrepreneur, a host of other immigration options may be open to you. The Alcorn Immigration Law team can help you identify your best options given your circumstances and goals. A few options include:

• EB-1A green card: The requirements for an EB-1A are rigorous. You must demonstrate and you have “extraordinary ability” in the sciences, arts, education, business, or athletics. However, you may submit a EB-1A petition yourself without an employer sponsor—and without the lengthy and expensive process of getting a labor certification.
• EB-1C green card: If your startup has been in business in the U.S. for at least a year, it can sponsor you for an EB-1C.
• EB-2 National Interest Waiver (NIW): If you have an advanced degree or “exceptional ability” in the sciences, arts, or business, you may be eligible for an EB-2 green card with a National Interest Waiver. An NIW eliminates the need to get labor certification. As with the EB-1A green card, international entrepreneurs who qualify for an EB-2 NIW may self-petition.
• L-1A visa: If you’ve already established your startup abroad and you’ve been working at the startup for at least a year, you could apply for an L-1A to open a U.S. office.

• H-1B visa: Your startup could sponsor you for an H-1B visa. However, getting an H-1B in the annual lottery remains difficult.

• Entrepreneur-in-Residence Programs: Some U.S. universities offer programs that enable you to get an H-1B visa to mentor business students while building your company in the U.S. These H-1B visas are not subject to the H-1B lottery. Global EIR, a nonprofit network of entrepreneurs, investors, and universities, connects international founders with universities, mentors, investors, or cities. San Jose State University, a Global EIR partner, is seeking immigrant entrepreneurs to start or grow their startups in Silicon Valley.

 

Fight for Entrepreneur Parole

I urge you to weigh in on DHS’s proposal to end the IER. The public comment period ends on June 28, 2018. All comments should reference DHS Docket No. USCIS-2015-0006 and should be submitted by either:

• The Federal eRulemaking Portal
• Mailing to:

Samantha Deshommes

Chief, Regulatory Coordination Division

Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Ave. NW

Washington, D.C. 20529

 

Why It’s Ending

According to the published proposal, DHS “continues to support the policy objectives of promoting investment and innovation” in the U.S. However, DHS believes that “the extraordinary use” of discretionary parole under the IER is “inadvisable, impracticable, and an unwarranted use of limited agency resources.” Specifically:

• Attracting and retaining international entrepreneurs should be addressed by Congress through the creation of a startup visa.
• The IER requires the DHS to engage in complex adjudications and “extraordinary use” of discretionary parole authority.
• The rule focuses narrowly on the economic benefits that foreign entrepreneurs may bring.
• The IER program does not provide a reliable immigration status or pathway for foreign entrepreneurs, which means additional risk for U.S. investors and U.S. workers.
• Limited DHS resources should not be expended on administering the complex IER program. IER requires complicated assessments, such as whether the startup has “substantial potential” for rapid growth and job creation or whether the applicant is “well-positioned…to substantially assist” with the growth and success of the startup.
• Foreign entrepreneurs and investors have other options, such as the E-2 visa, EB-5 green card, and E-2 National Interest Waiver green card.

 

We Need a Startup Visa

The IER offers the closest option to a startup visa. It allows qualifying foreign entrepreneurs to receive parole—or a temporary stay—in the U.S. to build their startups.

After Congress failed to create a startup visa, the Obama administration devised the IER program as a substitute. U.S. Citizenship and Immigration Services (USCIS)—part of DHS—possesses the authority to parole individuals into the U.S. on a case-by-case basis for either urgent humanitarian reasons or significant public benefit. The IER program offers parole to foreign entrepreneurs who create a significant public benefit by contributing to the economy, creating jobs, and fostering innovation.

The IER was finalized shortly before President Obama left office. The Trump administration delayed the rule’s implementation before it was scheduled to go into effect in July 2017. That prompted a VC group, startups, and foreign entrepreneurs to sue DHS for illegally delaying the rule. Last December, a federal judge ordered DHS to accept entrepreneur parole applications.

Earlier this month, the same group filed a motion for discovery to determine whether DHS is failing to process IER applications. In the proposal published in the Federal Registry, DHS acknowledged it has received 13 applications for entrepreneur parole. However, DHS has not granted parole under the IER program.

 

Contact Us

The Alcorn Immigration Law team knows that immigration leads to innovation. Our team can help determine the best strategy that enables international entrepreneurs to achieve their personal and professional goals. Contact us to set up a strategy session.