Back in November 2014 the President presented a number of targeted policy interpretations or new guidance for existing law and regulation meant to address some of the problems caused by lack of Immigration Reform. The Startup Visa Act in a variety of forms had failed to ever pass both chambers of Congress over a five year span and as a result President Obama sought to provide some measure of relief. To fix this issue he announced he would allow the Parole of foreign entrepreneurs who sought to innovate and start new businesses in the U.S. Nearly two after that promise the Administration has published draft Regulations permitting USCIS to issue a new type of Parole allowance. Pursuant to the Immigration and Nationality Act, the Secretary of Homeland Security has discretionary authority to grant temporary parole for two reasons: (1) significant public benefits or (2) urgent humanitarian situations. These specific categories were further limited to only aliens classified as refugees or, during particular labor disputes, alien crewman. The regulatory change creates more flexibility to allow a discretionary parole authority to extend to qualifying entrepreneurs who demonstrate that their start-up business entities have the potential of benefiting the United States’ economy. This discretionary parole authority will be evaluated on a case-by-case basis.
Under this entrepreneur-based parole, the Secretary of Homeland Security will grant a possible two-year parole period, for up to three entrepreneurs per start-up business entity. This benefit extends to the spouses and children of each entrepreneur. In order to qualify, both the entrepreneur and his or her business entity must meet certain criteria.
In order for an entrepreneur to be eligible, he or she must
(1) possess at least a fifteen percent ownership interest in the business entity at the time parole is granted;
(2) the entrepreneur must have a central and active role in the future growth and operations of the entity; and
(3) his or her household income must be over 400 percent greater than the poverty line (which generally means in excess of $80,000 per annum).
There are several requirements for the business entity itself.
First, the entrepreneur must have formed the entity within the three years prior to filing for the benefit and, second, the entrepreneur must prove that such entity will bring a significant public benefit to the United States by promising rapid business growth and job creation.
An entrepreneur can show that the entity will bring such a benefit in one of three ways:
(1) confirmation that United States’ investors, with bona fide records of successful investments, have invested at least $345,000 in the entity;
(2) verification that the entity has received grants or awards of at least $100,000 from Federal, State, or local government entities, who fund businesses specifically to promote job creation, research and development, or the economy; or
(3) if the business entity partially meets either (1) or (2), then the entrepreneur may provide additional compelling and reliable evidence that such business entity will provide a significant public benefit.
After an entrepreneur receives his or her initial parole, he or she can later extend his or her parole for another three years, which will allow him or her to grow and oversee the business entity. To extend, the entrepreneur should show that the entity is continuing to provide a significant public benefit, meaning that the entity is rapidly growing and continuing to create jobs. To show this, the entrepreneur must provide evidence that the entity has substantially increased its revenue, capital investments, and full-time employment. Further, the entrepreneur must possess at least 10 percent ownership interest in the business entity and continue to have a central and active role in the business’ growth and operations.
While this has been published for comment and is not yet a final rule, we are hopeful that it will ultimately be introduced in some form in the coming months and will be happy to assist clients who may qualify under this Parole option, where other available visa types are not available to the entrepreneur. Please contact us at firstname.lastname@example.org should you wish to discuss your eligibility for this benefit.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **