The new parole announcement is called the “International Entrepreneur Rule.” It won’t be effective for at least 45 days (to give the public time to comment on it). The change would include an amendment to the Code of Federal Regulations section interpreting INA 212(d)(5) to provide a “transparent framework” for the exercise of agency discretion and the case-by-case adjudication of parole requests for start-up entrepreneurs.
What Does the “International Entrepreneur Rule” Do?
A. Requirements
In order to be apply for parole under the International Entrepreneur Rule, an immigrant entrepreneur would be required to:
- Own at least 15 percent of the startup and be actively involved in its operation
- Have formed the business in the United States within the previous three years.
The entrepreneur must also prove that her business has the potential for job creation and growth by showing:
- Investment of a minimum of $345,000 from qualified U.S. investors with success in prior investments;
- The receipt of significant grants or awards from federal, state, or local government entities (at least $100,000); or
- Partially satisfying one or both of these criteria plus providing “other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.”
The new regulation will be found at 8 CFR 212.19.
B. What Parole Will Look Like
Under the proposed rule, a qualifying entrepreneur may receive parole for a two-year period, and may be eligible for a three-year renewal based upon the success of the start-up.
The Good
When finalized, the proposed rule may hold some potential for immigrants who find themselves waiting in the lengthy immigrant visa backlogs, as well as people from countries that do not have E-1 or E-2 visa status such as India and Mainland China.
It also appears this Parole is going to be available to immigrants already present in the United States who may have fallen out of status. Because parole is not an “admission” it will also help people who would technically be considered “inadmissible”or ineligible for adjustment of status.
Immediately I can think of a number of cases where this new status is going to help. A few examples:
- Individuals who entered the United States as L-1A multi-national managers and may be running out of time in L-1A status.Although there is a permanent version of the multi-national manager visa, I’ve seen a number of cases where USCIS will grant L-1A status but then denies the permanent visa erroneously. If you’re in this boat and can qualify for entrepreneur parole, this might be an option.
- Individuals who entered the United States as H-1B professionals but whose employers will not be filing a permanent visa petitions. Once they reach the maximum time allowed in H-1B, some of these people may be willing to start their own companies if they’re able to get up to five years of parole in the United States.
It also appears that the spouse of an entrepreneur granted parole is going to be eligible for work authorization too.
The Bad
There are a number of problems with the parole announcement, although they’re not the President’s fault.
A. Parole is Not a “Non-Immigrant Status”
Unfortunately, this status isn’t going to be all that helpful if you’re already in some other non-immigrant status or you’re hoping to eventually obtain permanent residence. This is because unless you have some other avenue to obtaining status and just need a few years of work authorization, this parole offers no mechanism for permanent residence. This is from the Federal Register:
Because all you get is parole, you technically won’t be in an “non-immigrant status.” This means changing to a different non-immigrant status when you’re finished with this parole will be difficult unless you’re willing to leave and come back. For many, that’s just not what we had in mind when we thought of a “start-up visa.”
B. Parole Does Not Make You Eligible for Adjustment of Status
Under this rule the entrepreneur would have, at most, five years to get the business running and then would have to leave. I can envision some people leaving and coming back as an E-2 treaty trader (if you’re from a treaty country) or perhaps becoming eligible for an EB-5 if they’ve invested enough of their own money.
But if you haven’t, at the end of five years there is no option to make this visa permanent. Some entrepreneurs may have gotten married in the United States in those five years or have adult children or other family who can file for them. For those who do not, this is not a permanent option.
Let’s say, for example, you’re already in H-1B status with an approved I-140 visa petition but you’re waiting for ten or more years on visa numbers. Last year’s visa bulletin updates didn’t offer much help. So maybe you’re thinking of jumping ship and applying for entrepreneur parole. The biggest drawback I see is that once your H-1B expires and you’re in “parole” you may have a hard time getting back into a non-immigrant status without leaving the United States first, and you will have given up on the approved I-140 that would eventually make you eligible for adjustment of status.
My hunch is that most people in a job they can at least tolerate aren’t going to jump ship.
Closing Thoughts
We still need a start-up visa. I’m sorry to be so negative because this is a much-needed and highly anticipated change. My frustration is aimed not at the President but at Congress. The President can’t create a new start-up visa. Only Congress can. It’s clear the President is trying very hard to keep this proposal within his Executive power and not to overreach.
The biggest losers from the lack of a start-up visa are immigrant entrepreneurs and the U.S. economy. In the interim, we will keep reading this final rule and looking for ways to use it to help individuals looking to start businesses and create jobs in the United States.
What do you think of the entrepreneur program? Leave your thoughts in the comments.
“Because all you get is parole, you technically won’t be in an “non-immigrant status.” This means changing to a different non-immigrant status when you’re finished with this parole will be difficult unless you’re willing to leave and come back.”
– My U visa case is currently pending. I am currently on OPT and might get quota-exempt H1-B status from my employer. However, I might quit my job, thereby leaving me out in the cold.
If I am able to get parole under this initiative, can I transfer back to U status after deferred action is granted under my U case? I am trying to buy time while waiting for my U deferred action to be granted. I want to remain legally in the country during this wait. Can this new entrepreneurship visa help me?
Thanks for addressing my questions.
Great question. U visas are different than most non-immigrant visas, because you don’t have to do a “change of status” to get them. You don’t have to be in any current visa status to get a U Visa. So this parole program might be a great option for someone who is out of status and has a U Visa pending. In theory, if the U visa is approvable, USCIS will eventually give “deferred action” which will provide work authorization. But that’s taking over two years right now. So if you’re in that window, where you’re still waiting on deferred action, parole under this program might be an option.
Matthew, I am interested in speaking with you regarding how you might be able to adjust into parole if I quit my job and do not have alternative legal status, other than waiting for U status deferred action. Your assistant who I called today wants $50 to speak to you. Most attorneys do not charge for an initial consult. Since you made me aware of this new development, I’m willing to see how you can help my case if you are willing to please consider waiving the initial consult fee. I look forward to hearing your favorable response.
In addition to this new entrepreneurship development for immigrants, I’d also like to see how you can enhance my U case. I’d be happy to discuss details in a private complimentary conversation. Thanks for considering my request.
Good morning!! I just want to know if somebody knows what is going to hapen with us now that we are going to have a new president?
With people that just have de daca and still waiting for the visa u?
We don’t know which parts of Trump’s immigration statements he plans to follow through with. Keep in mind he doesn’t have a fillibuster-proof Senate so they will have to work together on whatever they do. We will know more in the next few months and I will post about it when we do.