Introduction

A proposed rule providing parole for entrepreneurs recently reached the Office of Management and Budget for review. The rule comes as a response to several of the initiatives in President Barack Obama's executive order of November 20 2014. The executive order to modernise and streamline the US immigration system for the 21st century sought to address how the United States can continue to attract immigrants to foster innovation and entrepreneurship, in order to grow the US economy and create jobs for US citizens.

Government research from the White House indicates that immigrants are extremely entrepreneurial, founding businesses that create jobs for millions of US citizens. In particular:

"One report noted that 25 percent of companies backed by venture capital between 1991 and 2006 were started by immigrants. Another study reported that immigrants started a quarter of engineering and technology companies founded between 1995 and 2005. In May 2012, the Small Business Administration's (SBA) Office of Advocacy released a research study which found that immigrants have high business formation rates and create successful businesses that hire immigrant and U.S. citizen employees, and export goods and services."(1)

Because of these significant findings, the executive action is indispensable to ensure that entrepreneurs continue to be innovative contributors to the United States.

Parole programme

To move forward with the executive order pertaining to entrepreneurship, the government indicated that the Department of Homeland Security will propose – consistent with its existing parole authority – a parole programme for entrepreneurs who would provide a 'significant public benefit'.

The proposed Significant Public Benefit Parole for Entrepreneurs rule reached the Office of Management and Budget for review on August 1 2016. The office assists the president in fulfilling his vision across the executive branch. It reports directly to the president and supports numerous agencies and departments across the federal government to "implement the commitments and priorities of the President".(2) For this rule, the Office of Management and Budget will "coordinate and review all significant Federal regulations by executive agencies, to reflect Presidential priorities and to ensure that economic and other impacts are assessed as part of regulatory decision-making".

While the full text of the proposed rule is not yet public, the website summary indicates that:

"The Department of Homeland Security (DHS) is proposing to establish a program that would allow for consideration of parole into the United States, on a case-by-case basis, of certain inventors, researchers, and entrepreneurs who will establish a U.S. start-up entity, and who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research. Based on investment, job-creation, and other factors, the entrepreneur may be eligible for temporary parole."(3)

At present, Congress gives the attorney general the power to parole into the United States any foreign national applying for admission based on recommendations, including for a significant public benefit.(4) Parole of a foreign national for a significant public benefit is not regarded as an admission of the foreign national. When the purposes of the parole, in the opinion of the attorney general, have been served, the foreign national should return to his or her home country and his or her case will continue to be dealt with in the same manner as that of any other applicant for admission to the United States.(5) It is unclear whether the proposed rule will follow the same procedures as the existing treatment of parolees for significant public benefit.

Comment

It is anticipated that additional information pertaining to the proposed rule will be released before the conclusion of Obama's term in office.

For further information on this topic please contact Melissa Winkler at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (melissa@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

Endnotes

(1) www.whitehouse.gov/sites/default/files/docs/final_visa_modernization_report.pdf.

(2) www.whitehouse.gov/omb/organization_mission.

(3) www.reginfo.gov/public/do/eAgendaViewRule?pubId=201604&RIN=1615-AC04.

(4) 8 CFR 212(d)(5)(a).

(5) Ibid.

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