On January 17, 2017, the final rule principally affecting the following components of the employment-based immigration system went into effect:
- Immigrant petition (I-140) revocations
- H-1B extensions beyond six-year limit
- Priority date retention
- 60-day grace period
- 10-day grace periods
- I-140 job portability
- Adjudication of employment authorization documents (EADs)
- Issuance of EADs due to “compelling circumstances”
On the same day, a second final rule was published in the Federal Register, this one concerning the recently proposed parole for entrepreneurs. However, while published, it will not go into effect for another 180 days and, more importantly, appears to fall within the scope of paragraph three of the January 20, 2017, memorandum issued by the White House that freezes all regulations pending review. Therefore, it appears this final rule may still go into effect, but only after it has been reviewed and approved by a “department or agency head appointed or designated by the President after noon on January 20, 2017.”
If the rule becomes effective, USCIS will be permitted to parole into the U.S. entrepreneurs of startup companies that meet the following criteria:
- The entrepreneur must have a substantial ownership interest in the startup company (at least 10%) and have an active and central role in the company’s operations.
- The company must have been founded in the U.S. within the past five years.
- The startup must have substantial and documented potential for rapid business growth and job creation, as evidenced by (1) the receipt of an investment of at least $250,000 from one or more qualified investors; (2) receipt of at least $100,000 in government awards or grants; or (3) partially meeting the first and/or second criteria as well as providing other credible and compelling evidence of the startup’s substantial potential for rapid growth and job creation.
Under the final rule, entrepreneurs would be granted up to two and a half years to live and work in the U.S. to build up the business. In addition, only three entrepreneurs connected to a single startup may receive parole under this rule. They would receive employment authorization incident to status, and their spouses would be eligible to apply for employment authorization.
In addition, admitted entrepreneurs may apply to extend their parole status for up to an additional two and a half years if:
- The entrepreneur possesses at least a five percent ownership interest and continues to have an active and central role in the startup.
- The startup continues to have potential for rapid growth and job creation by showing it has (1) received at least $500,000 in qualifying investments, qualified government grants or awards, or a combination of such funding, during the initial parole period; (2) created at least five qualified jobs with the start-up entity during the initial parole period; (3) reached at least $500,000 in annual revenue in the United States and averaged 20 percent in annual revenue growth during the initial parole period; or (4) partially satisfies one or more of the above criteria and can provide other credible and compelling evidence.
At the time the final rule becomes effective, eligible entrepreneurs will be able to submit their applications utilizing a new form (Form I-941, Application for Entrepreneur Parole).