The United States has been making efforts in recent years to attract and retain highly skilled workers and entrepreneurs. The government has been doing this not by amending its immigration laws, but through presidential executive actions and agency rule making. One example is President Obama's executive action directing the US Citizenship and Immigration Services to make administrative improvements to the employment-based, second preference (EB-2) National Interest Waiver category that would enhance opportunities for foreign investors, researchers or start-up enterprises wishing to conduct research and create jobs in the United States. Another example is the revision of the US Department of Homeland Security's (DHS) regulations, governing the F-1 student programme, in which the DHS expanded the post-degree Optional Practical Training for F-1 students from 17 months to 24 months for those F-1 students who have earned US degrees in sciences, technology, engineering and mathematics.
Recently, the DHS proposed a new rule to retain and attract highly skilled workers and entrepreneurs to the United States: the International Entrepreneur Rule. This proposed rule is separate from the E-2 and EB-5 US investor visa programmes, and would provide another avenue for entrepreneurs who wish to live and work in the United States to pursue.
Under the proposed rule, the initial period of parole would be two years if:
- the start-up entity:
- was created within three years of the date of filing the parole application;
- has been continuously doing business in the United States; and
- has substantial potential for rapid growth;
- the foreign national has at least a 15% ownership interest in the start-up entity and plays an active or central role in the business; and
- the start-up entity has significant capital funding, as shown through:
- investment by US investors of $345,000 (the US investor must have a history of successful investing, be a US citizen or organisation located in the United States or be majority owned by US citizens);
- a government grant of $100,000 or more; or
- alternative compelling evidence that shows the grant of parole would provide a significant public benefit that would validate the entity's substantial potential for rapid growth and job creation.
The parole would also be available to the applicant's spouse and children under 21 years of age. The spouse may apply for employment authorisation once paroled inside the United States. The principal applicant would not need a separate employment authorisation document, but only a passport and an I-94 record showing the foreign national was paroled into the United States.
Under this proposed rule, a foreign national may receive a three-year extension of parole status if:
- the start-up entity continues to do business in the United States, and has a potential for rapid growth;
- the foreign national has at least a 10% ownership interest in the business and continues to play an active or central role; and
- the foreign national shows significant investment or the creation of jobs through the:
- reinvestment of at least an additional $500,000 during the initial two year parole period by established US investors (government grants may be used to reach the $500,000 threshold); or
- revenue generation of $500,000 during the initial two year parole period, with average annualised growth of 20% during the initial two year parole period; or
- proof of the creation of 10 full-time jobs during the initial two year parole period; or
- alternative evidence to show significant public benefit that would validate the start-up entity's substantial potential for rapid growth and job creation.
The proposed rule, in its current form, has several advantages, but a couple of drawbacks. From a positive perspective, the new rule requires an investment amount that is lower than the $1 million or $500,000 investment thresholds that exist in the EB-5 investor green card programme. In addition, participation in the parole for entrepreneurs programme is not limited to foreign nationals from certain countries, like the E-2 non-immigrant treaty investor programme. Unfortunately, at some point, a foreign national will need to apply for some other type of immigration benefit, before exhausting the five-year maximum parole period, since the parole benefit would not confer non-immigrant status by itself, or provide a path to US lawful permanent resident alien status. However, considering the maximum period of parole would be five years under the programme, it would give the foreign national time in the United States to try to pursue other immigration options, while growing their business.
For further information on this topic please contact Matthew Morse at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email ([email protected]). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.