Highlights of the Proposed Rule for Parole for Entrepreneurs. By Greg Siskind

Highlights of the Proposed Rule for Parole for Entrepreneurs

By: Siskind Susser attorney Greg Siskind

Date:   August 29, 2016

Please note: This article is about a Proposed Rule. The actual final regulation may differ from this Proposed Rule when the DHS issues the Final Rule. Also, this rule does not become effective until the effective date that DHS will list when they issue the Final Rule creating the change in the regulation. Therefore, as of the date of this post (8/29/16) you are not able to apply for this benefit yet, and readers are warned to consult with one of our firm’s attorneys or another experienced immigration lawyer before relying on the information provided below. 

On August 26, 2016, the Department of Homeland Security released a Proposed Rule to propose granting parole and employment status on a discretionary basis to entrepreneurs meeting various criteria. The proposal was mentioned in President Obama’s November 2014 statement announcing a series of executive actions on immigration.  The proposal uses the President’s broad parole power to grant the right to stay and work to individuals when granting the benefit will provide a significant public benefit. The public will have 45 days to comment, beginning on 29 August 2016. Presumably, the goal is to release a Final Regulation before the end of the year. Parole for Entrepreneurs will be made available to applicants who are founders of start-ups if the following conditions are met:

1. The founder has received at least $345,000 in capital investment from US investors with established records of successful investments or obtained $100,000+ in awards or grant funding from federal, state or local economic development agencies. Lesser amounts are possible if compelling evidence can be provided that the approval would provide a significant public benefit.
2. The start-up must be less than three years old when the initial parole application is filed.
3. The entrepreneur must have an initial equity stake in the start-up of 15% and have an “active and central role” in the business.
4. Up to three founders, per start-up, will be eligible for parole.
5. Entrepreneurs will be authorized to work “incident to status” with just an I-94 instead of having to apply for an employment authorization document. Employment is only authorized at the start-up that is the subject of the application.
6. Spouses and minor children will also be eligible for parole status. Spouses will also be eligible to apply for an employment authorization document. Children will not be authorized to work.
7. Parolees must maintain a household income of 400% of the HHS poverty level for a family the size of the parolee’s family. The spouse’s income may be included.
8. Applicants will be granted an initial stay of up to two years; a single extension of up to three years is possible. Parolees are authorized to work for up to 240 days while the re-parole application is pending.
9. To get an extension, an applicant would need to show the start-up has shown signs of “significant growth” since the initial grant of parole and the start-up continues to have substantial potential for rapid growth and job creation. The entrepreneur’s equity stake can decline to 10% from the initial 15%. The start-up would continue to have to show potential for rapid growth and job creation which can be shown in a variety of ways including receiving $500,000 in new investments, generating $500,000 per year and growing at a 20% pace, or creating ten or more full time jobs for US workers.
10. USCIS estimates about 3,000 per year will be able to take advantage of the new program. There is no limit, however, on the number of applications that will be accepted and approved.
11. USCIS is creating a new Form I-941 to apply for Parole for Entrepreneurs status. Biometrics will also need to be provided. The proposed filing fee will be $1200 plus the biometrics fee (presumably less than $100). Applicants will be provided a travel document.
12. Applicants can file either from inside the US or outside the country. If outside the US, biometrics will need to be collected at an overseas USCIS office. Parole is not considered to be an admission to the US so if one seeks to convert to a nonimmigrant status or permanent residency, consular processing would likely be needed.
13. This is a discretionary benefit and USCIS will not allow an appeal or motion to reopen to be filed. USCIS will also not guarantee a chance to respond to reply to a request for evidence (RFE) or a notice of intent to deny (NOID). However, they may file a motion to reopen on their own and may issue RFEs and NOIDs at their discretion.
14. Material changes, such as the closing of the start-up, must be reported to USCIS and USCIS will automatically revoke parole if an extension is not timely filed or the parolee’s employment with the start-up terminates. Other material changes reported could lead to the termination of parole status subject to the discretion of USCIS.
15. DHS is also proposing extending employment authorization eligibility for the following nonimmigrant categories:

• Dependents of Taipei Economic and Cultural Representative Office (TECRO) E-1 nonimmigrants;
• J-2 dependent children of J-1 exchange visitors;
• Dependents of A-1 and A-2 foreign government officials;
• Dependents of G-1, G-3, and G-4 international organization officials; and
• Dependents of NATO officials.