A recently proposed U.S. Citizenship and Immigration Services (USCIS) rule would, among other things, allow the agency to use its discretionary authority to parole into the United States founders of startups with a minimum $345,000 investment from certain qualified U.S. investors with established records of successful investments. The comment period ended October 17, 2016, and yielded hundreds of comments.

The Alliance of Business Immigration Lawyers (ABIL) and other commenters took issue with various proposed provisions, noting that the USCIS proposal "falls short in several material ways"; for example, by:

  • Requiring voluminous and burdensome documentation to prove, by a preponderance of the evidence, "the substantial and demonstrated potential" likelihood that a start-up venture backed by a foreign entrepreneur will grow in revenue and add jobs rapidly;
  • Offering no way for a parolee to switch from or to another lawful immigration status in the United States;
  • Permitting startups and parolees too short a runway of initial and extended time for lift-off and stable cruising at higher elevations;
  • Mandating an unreasonably high investment amount, limiting the source of startup capital to a small group of venture capitalists, and barring consideration of "friends and family"-backed investments;
  • Requiring re-submission of evidence and re-adjudication of the parole benefit virtually every time the entity's ownership or strategic direction, or the job duties assigned to the foreign entrepreneur, may change after the initial approval of parole; and
  • Omitting any direct path for the parolee to become a lawful permanent resident.

ABIL and other commenters made the following recommendations:

  1. Start-up companies in "stealth mode" should be allowed to participate in this program.
  2. The final rule should lower the parole and re-parole capital thresholds.
  3. Qualifying investment amounts obtained within three years after creation of the start-up should count toward the USCIS-proposed threshold of $345,000.
  4. The final rule should reduce the investment threshold of $345,000 for initial parole to $120,000.
  5. The final rule should revise the definition of "well-positioned" to substantially assist a start-up.
  6. The final rule should define "start-up entity" more clearly and accept reputable expert witness testimony.
  7. The final rule should allow parole for entrepreneurs in startup companies formed more than three years before the parole application is filed.
  8. The final rule should define "capital" broadly.
  9. The final rule should allow investments from family members and close friends.
  10. The final rule should include a more flexible definition of full-time employment.
  11. The proposed rule's requirement to file a new parole application whenever a material change occurs is impractical and onerous.
  12. The final rule should extend parole beyond five years and allow a pathway to permanent resident status.
  13. The final rule should complement and not supplant prior USCIS policy on entrepreneurs.
  14. Spouses of entrepreneurial parole beneficiaries should automatically receive work authorization incident to status; i.e., without the need to apply separately for an Employment Authorization Document.
  15. The final rule should authorize premium processing and expressly permit review by motion to reopen and reconsider and administrative appeal, also with premium processing, with the assured continuity of the parolee's employment authorization until the receipt of the final USCIS decision.
  16. The final rule should allow parolees to switch status to or from all employment-based nonimmigrant visa categories and to qualify for adjustment of status.
  17. The final rule should apply the authority granted to approve applications for adjustment of status to that of a lawful permanent resident where the parolee's inability to adjust is "other than through no fault of his or her own or for technical reasons."

The proposed rule was published on August 31, 2016, and is at https://www.federalregister.gov/articles/2016/08/31/2016-20663/international-entrepreneur-rule.