Final Rule to Create Parole Program for Entrepreneurs Published

The final international entrepreneur rule was published in the Federal Register on January 17, 2017. The rule is aimed at expanding the immigration options for foreign entrepreneurs who help the U.S. economy by creating jobs, generating revenue, and attracting further U.S. investment. The final rule establishes general criteria permitting qualified international entrepreneurs to receive a grant of “parole” to enter the United States. Eligible paroled entrepreneurs would, under the final rule, possess temporary permission to live in the United States and start or expand the U.S. business specified in the parole application.

This rule was initially set to go into effect on July 16, 2017. Due to a regulation freeze implemented by President Donald Trump, however, the soonest the rule could be implemented would be July 20, 2017, and it is possible that the rule will be scrapped altogether.

Criteria to Qualify Entrepreneurs for the Grant of Parole

Although the DHS already has discretionary parole authority, the final rule expands the authority to parole, on a case-by-case basis, eligible entrepreneurs with startup enterprises. Assuming the rule goes into effect, eligibility will be limited to foreign nationals who meet all of the following criteria:

• The foreign national entrepreneur must have a significant ownership interest in the startup (at least 10 percent), and have an active and central role in its operations and future growth of the entity. The applicant’s knowledge, skills, or experience must substantially assist the entity in conducting and growing its business.
• The entrepreneur’s startup must have been formed in the United States within five years prior to filing the application.
• The entrepreneur’s startup must have substantial and demonstrated potential for rapid business growth and job creation, as evidenced by any of the following:
  • Receiving significant investment of capital (at least $250,000) from qualified U.S. investors with established records of successful investments (for example, so-called “angel” investors)
  • Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities
  • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation

Criteria for ‘Qualified U.S. Investors’

To be a “qualified U.S. investor,” all of the following criteria must be met:

• Must be an individual who is a U.S. citizen or lawful permanent resident (LPR), or be a U.S. organization that is majority owned and controlled by U.S. citizens or LPRs
• The individual or organization must regularly make substantial investments in start-up entities that subsequently exhibit substantial growth in terms of revenue generation or job creation
• The individual or organization must have made investments in start-up entities in exchange for equity, or other forms of security, comprising a total in such 5-year period of no less than $600,000
• Subsequent to such investment, at least 2 such entities each created at least 5 qualified jobs or generated at least $500,000 in revenue with average annualized revenue growth of at least 20 percent

Entrepreneurs’ Ownership Interest and Household Income

The final rule contains a number of protections against abuse and related concerns. Even though the investor is only required to have at least a ten percent stake in the company, only three individuals may receive parole grants through any particular entity. The rule also contains a provision requiring that paroled entrepreneurs must maintain a household income that is at least 400 percent of the poverty level for the household size.

30-Month Initial Period and Potential 30-Month Extension

Under the final rule, entrepreneurs may be granted an initial stay of up to 30 months to oversee and grow the startup entity in the United States. A subsequent request for re-parole for up to an additional 30 months is possible, if it can be demonstrated that the individual’s stay in the United States continues to provide a significant public benefit.

Criteria for Re-Parole / Extension

To qualify for re-parole, the business entity must continue to be a startup, as defined in the proposal. The applicant must continue to be an entrepreneur serving a central, active role in the company and own at least five percent of the company. The company must also continue to have the potential for rapid growth and job creation. This can be shown through additional investments or grants (at least $500,000), revenue generation (at least $500,000 in annual revenue with average annualized revenue growth of at least 20 percent), job creation (at least five jobs), or alternative criteria.

Conclusion

As discussed above, the final fate of this rule remains unclear. MurthyDotCom will continue to closely track this matter and report any developments.

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