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  • Article: Employment-Based Sixth Preference: Is it For Real? By Joseph M. Barnett, Bernard P. Wolfsdorf, Cliff Rosenthal

    Employment-Based Sixth Preference: Is it For Real?

    by


    With the new Form I-941, Application for Entrepreneur Parole in place, for now , our firm has received numerous questions from foreign nationals about a potential path to green card status through U.S.-sponsored entrepreneurship.

    In 2013, a bill, called the Start-Up Visa Act , was proposed in the U.S. Senate to establish an employment-based immigrant visa for alien entrepreneurs, who have received significant capital from investors to establish a business in the U.S. This bill would have created a new employment-based category – sixth preference (EB-6) – for sponsored entrepreneurs who meet certain job creation, capital investment, or revenue-generating standards. However, this bill was never enacted into law, and there is currently no EB-6 immigrant category.

    Nevertheless, foreign entrepreneurs may obtain parole status within the U.S. through the International Entrepreneur Rule (“IEP”). Unfortunately, parole can be terminated by USCIS at any time, and those under parole can technically still be detained by U.S. Immigration and Customs Enforcement (“ICE”), as they are not in the U.S. under lawful immigrant status.

    The International Entrepreneur Rule from January 2017 provides that an alien may be considered for parole if:

    • A U.S. business entity (a) was created within 5 years immediately preceding the filing date of the alien’s parole request, (b) has lawfully done business since its formation, and (c) has potential for rapid growth and job creation;
    • The alien either (a) possesses at least 10% of the business entity at the time of the parole request, and (b) has a central and active role in the operations of that entity, such that the alien is well-positioned, due to his or her knowledge, skills, or experience, to substantially assist the entity with the growth and success of its business; and
    • The business entity has either received, within 18 months immediately preceding the filing date of the alien’s parole request, (a) a “qualified investment” amount of at least $250,000 from a “qualified investor,” or (b) at least $100,000 through one or more qualified government awards or grants.

    The IEP adds a new section 8 CFR § 212.19 to provide guidance for using the parole for entrepreneurs of start-up entities based upon significant public benefit. Unfortunately, the U.S. Government Publishing Office and the Electronic Code of Federal Regulations have yet to include the final rules of the IEP for public use. Further, the instructions to Form I-941 contain requirements that are different from the requirements contained in the International Entrepreneur Rule (for more information on the inconsistencies, click here ) . We are hopeful that USCIS will provide guidance to clarify these important requirements.

    This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2017 Wolfsdorf Connect - All Rights Reserved.


    About The Author

    Bernard Wolfsdorf Bernard Wolfsdorf is the managing partner of the top-rated law firm, Wolfsdorf Rosenthal LLP (www.wolfsdorf.com), and the past national president of the 14,000-member American Immigration Lawyers Association (AILA). Established in 1986, Wolfsdorf Rosenthal LLP is known worldwide for providing exceptional quality legal services. With 19 lawyers and offices in Los Angles and New York, the firm was recently listed as a top-tier immigration practice by Chambers & Partners with several of the firm's attorneys listed in the 2015 International Who's Who Legal. Mr. Wolfsdorf specializes in EB-5 investment immigration in addition to the full range of global immigration matters. Joseph Barnett is an Associate Attorney at Wolfsdorf Rosenthal LLP and a member of the firm’s EB-5 and business immigration practices. He is licensed as an attorney in Illinois and Wisconsin and practices exclusively in immigration and nationality law. Cliff Rosenthal is partner of Wolfsdorf Rosenthal LLP. Mr. Rosenthal specializes in providing comprehensive immigration solutions to meet the needs of the firm’s diverse spectrum of clientele. Possessing over 16 years of experience and a thorough knowledge of the immigration law practice, Mr. Rosenthal prepares and assists clients with a wide range of immigration cases, focusing on non-immigrant and green card visa petitions, as well as applications for U.S. citizenship. Mr. Rosenthal is a founding partner of the firm, and has been described by the Who’s Who of Business Lawyers as “a very strong contingent from the firm’s Santa Monica office.” Mr. Rosenthal is a former member of the American Immigration Lawyer Association (AILA) Board of Publications and Healthcare Committee and a past Chair of AILA’s Religious Worker Committee. Mr. Rosenthal has also published numerous book chapters and articles on a wide range of immigration issues. His body of work includes publications in Immigration Options for Artists and Entertainers, AILA’s Guide to U.S. Citizenship & Naturalization Law, Advanced Immigration Solutions for Small Businesses and Entrepreneurs, and The Visa Processing Guide, among others.


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

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