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  • Article: Entrepreneur Parole Now Available By David Wilks and Stephen Yale-Loehr

    Entrepreneur Parole Now Available

    by


    On December 14, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced that “entrepreneur parole” is now available. The application form and instructions are at https://www.uscis.gov/I-941.

    The entrepreneur parole rule has had a long and complicated history. The United States does not have a visa category specifically for start-up founders. Thus, international entrepreneurs have to fit into one or more existing visa categories. That can be difficult. For an article about the various visa options international entrepreneurs may qualify for, see https://millermayer.com/2016/visa-op...entrepreneurs/ .

    In August 2016, The Obama administration proposed a rule to grant parole for certain entrepreneurs as a way to help international entrepreneurs stay in the United States temporarily while forming and growing their companies. After receiving more than 750 comments, the prior administration published a final rule on January 17, 2017. The rule was supposed to take effect on July 17, 2017. However, on July 11, 2017, the Trump administration published a rule delaying the effective date until March 14, 2018, and proposing to eliminate the program. The National Venture Capital Association and others sued, claiming that the USCIS violated the Administrative Procedure Act (APA) in delaying implementation of the rule. On December 1, a federal district court agreed, and vacated the delay rule. Nat'l Venture Capital ***'n v. Duke, 2017 U.S. Dist. LEXIS 197738 (D.D.C. Dec. 1, 2017).

    Because of the court order, the USCIS is now implementing the entrepreneur parole rule. However, the agency also plans to publish soon a proposed rule to eventually eliminate the rule. For the time being, however, the program is available to international entrepreneurs who meet the program’s requirements.

    To qualify, an entrepreneur must demonstrate:

    • 15% ownership stake in the start-up entity, 10% for subsequent extensions and amendments. (The January 2017 final rule authorizing entrepreneur parole only requires 10% ownership for the initial application and 5% ownership for subsequent amendments and extensions. However, the I-941 instructions limit eligibility to the terms listed above.)
    • Proof of formation in the last three years. (The final regulation allows work for entities formed within the last five years. However, the I-941 instructions limit eligibility to entities formed in the last three years.)
    • The start-up has received substantial capital investment, grants, or awards.
      • Within the last year received an aggregate of $100,000 in government grants or $345,000 from qualified investors. (The final regulations require only $250,000 of aggregate funding if using qualified investors, and give an 18-month timeframe to aggregate either private or public funds. However, the I-941 instructions limit this to the terms described above.)
      • If only substantial amount of the funding criteria is met, the entrepreneur may provide compelling evidence that the entity has substantial potential for rapid growth and job creation.

    To apply for entrepreneur parole, the applicant should file Form I-941, along with a $1,200 filing fee and an $85 biometrics fee, with:

    USCIS

    P.O. Box 650890

    Dallas, TX 75265

    (For FedEx, UPS, and DHL):

    USCIS

    Attn: IER

    2501 S. State Highway 121 Business

    Suite 400

    Lewisville, TX 75067

    If an international entrepreneur obtains parole through this program, they can receive up to five years of work authorization, in two 30-month increments.

    Spouses and minor children may accompany the entrepreneur by filing form I-131. Filing fees and instructions for Form I-131 can be found at https://www.uscis.gov/i-131. The USCIS has reportedly updated the I-131 form for dependents of entrepreneurs, but has not yet released the updated form as of the time of this article.

    Because the program is so new, many unanswered questions remain. Moreover, the program may be shortlived, depending on how long the USCIS takes to follow the APA’s requirements for notice and comment rulemaking to eliminate the existing rule. Nevertheless, entrepreneurs should consider applying if they think they meet the program’s requirements and lack better visa options.

    If you are interested in taking advantage of this program, please find more information at https://millermayer.com/2017/new-eb5...reneur-parole/ .


    About The Author

    David Wilks (djw@millermayer.com) is an attorney with Miller Mayer LLP (http://www.millermayer.com) in Ithaca, New York. A graduate of Cornell Law School, Mr. Wilks represents multinational corporations, healthcare institutions and providers, investors, universities, small businesses, and individuals in complex business immigration matters. Mr. Wilks currently serves as Vice-Chair of the American Immigration Lawyers Association (AILA)’s USCIS Liaison Committee (Vermont Service Center Subcommittee) and is a member of the U.S. Alliance for International Entrepreneurs (USAIE). For more information about USAIE, go to www.usaie.org.
    Stephen Yale-Loehr (swy1@cornell.edu) is co-author of Immigration Law and Procedure, the leading immigration law treatise, published by LexisNexis. He also teaches immigration and asylum law at Cornell Law School, and is of counsel at Miller Mayer. He founded and was the first executive director of Invest in the USA, the trade association of EB-5 regional centers. He has testified several times before Congress, including a July 2009 U.S. Senate hearing about the EB-5 program.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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