New USCIS regulations coming into effect on July 17, 2017 have created a new avenue for start-up entrepreneurs to enter the United States as a parolee. The goal of the new regulation is to allow the smooth start-up of a new business that would provide significant public benefit to the United States based on job creation and other criteria. Under the new rule, an applicant would file form I-941 and would be admitted in parolee status at the discretion of the USCIS officer reviewing the case. The parole document would authorize the entrepreneur to only work for the start-up that he or she is overseeing.
The initial parole would be granted for 2.5 years, with the option to renew for an additional 2.5 years, providing a total of 5 years in parolee status for entrepreneurs. Please note that no more than three (3) entrepreneurs are allowed to apply for parolee status for the same entity.
To qualify for this status, the applicant needs to meet the following criteria –
1. Applicant has formed a new start-up entity
In the regulations, a “new start-up” is defined as a business that has been incorporated no more than 5 years prior to the filing date. The business must be legally conducting business in the U.S. and have the potential for substantial growth. The start-up must have received funding with 18 months of filing the application.
2. Applicant is an entrepreneur
USCIS defines “entrepreneur” as an alien who possesses at least 10% of ownership interest AND is central to the growth of the company. The entrepreneur must have skills, knowledge or experience that is vital to running the company and ensuring continued growth. The entrepreneur cannot be a mere investor.
3. Start-up entity has received significant U.S. capital investment ($250,000 or more) from a qualified investor OR significant grants from government agencies ($100,000 or more)
A “qualified investor” is an individual or entity that is majority controlled by U.S. citizens or legal permanent residents that have a history of successful investments. They must have made substantial investments that total at least $600,000 in the past five (5) years in start-ups. Two (2) of the start-ups in this time period must have either created at least 5 U.S. jobs OR generate revenue of $500,000/year or more and have annualized growth of at least 20%.
Qualifying government grants must be from government agencies that have expertise in economic development. The grants can be from state or federal agencies.
If an applicant partially meets either of the above criteria for investments, USCIS may consider other applicable evidence of investment.
In order to renew parolee status for the additional 2.5 years, the following criteria must be met –
1. The start-up entity continues to exist and do business in the U.S. AND has continued potential for substantial growth
2. The applicant holds at least 5% or more of company shares AND continues to be vital for business development
3. The start-up entity must have secured an additional $500,000 in funding (can be from government or qualified investors) OR be generating revenue of $500,000/year or more with annualized growth of 20%. The start-up entity must also have created at least 5 full-time U.S. jobs.
Checklist of Qualifications
Q: Can my family apply for parolee status with me?
A: Yes. Spouses and children of entrepreneur parolees can also apply for parolee status using form I-131.
Q: Can my spouse work while we are in the U.S.?
A: Your spouse does not automatically receive work authorization, but he or she is able to apply for a work authorization document through USCIS.
Q: Am I allowed to work for other companies while I am in this status?
A: No. You are only authorized to work for the start-up entity in the United States.
Q: Can I apply for a nonimmigrant status or a green card during this time?
A: You are free to apply for any alternate nonimmigrant status during your time as entrepreneur parolee. However, you are not able to apply for a green card while you are a parolee (as you cannot file an adjustment of status), you must leave the U.S. and re-enter in a different status.
Q: What if I only partially qualify under the new regulations?
A: USCIS has allowed for alternative criteria to be introduced if the applicant partially qualifies under the new regulation. Strategy for alternative criteria will be discussed on a case-by-case basis with your attorney.
Q: If my position or the business changes, do I have to report to USCIS?
A: Yes. You must notify USCIS of any material changes to the business or your position.
Q: Can I still invest in the start-up entity?
A: Yes, you are able to invest in the start-up. However your investment does not count towards the necessary $250,000 investment threshold for the application. Moreover, simply investing does not make you eligible for the entrepreneur parole 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 **