On July 11, 2017, the Department of Homeland Security ("DHS") temporarily delayed the effective date of a rule that would have allowed foreign entrepreneurs to temporarily come to the United States and work in the country when they have received significant financial backing from established investors.
The International Entrepreneur Rule (the "IER") was initially published in the Federal Register on January 17, 2017 – in one of President Obama's final days in office. Prior to the DHS delay, the IER was scheduled to become effective on July 17, 2017. Now, if the IER is not further revised or rescinded, it will become effective on March 14, 2018. However, DHS states that its request for comment specifically pertains to the proposal to rescind the IER, and the delay provides an opportunity for the proper notice and comment rulemaking process to occur with respect to rescinding the IER.
The IER amends DHS regulations that inform the Secretary of Homeland Security's discretionary authority as applied to international entrepreneurs. The IER states, that international entrepreneurs who can demonstrate that their presence in the United States would provide a significant public benefit to the United States, as expressed under Section 212(d)(5) of the Immigration and Nationality Act, may stay in the US for a period of thirty months to facilitate the applicant's ability to oversee and grow his or her start-up entity in the country. An entrepreneur demonstrates the required significant public benefit when they have raised $250,000 or more for their business from established American investors, or when they have received $100,000 or more in government grants toward their business venture. Additionally, a thirty month extension of the applicant's visa would be available if the entrepreneur and its entity have shown signs of significant growth since the initial grant of parole by DHS and the entity continues to have substantial potential for rapid growth and job creation.
Given that the IER did not go into effect as planned, foreign entrepreneurs are left with the existing menu of visa options to choose from if they would like to pursue their own company in the United States. The most popular option for now will likely remain the H-1B visa, which allows highly skilled and educated foreign workers an opportunity to receive two separate, three years visas in the United States. Alternatively, foreign entrepreneurs with extraordinary ability shown by sustained national or international acclaim can receive an O-1 visa, although this will only apply to foreign entrepreneurs with an existing reputation for achievement in business.