On December 14, 2017, USCIS announced that it will begin implementing the previously delayed International Entrepreneur Rule (IER) and has provided instructions for filing for advance parole under the EIR program. However, USCIS also stated that the Department of Homeland Security (DHS) is in the final stages of drafting a rule to remove the IER.
The IER was published under the Obama Administration with an effective date of July 11, 2017, but it did not take effect because DHS issued a final rule on this date delaying the start date until March 14, 2018. DHS was seeking to give USCIS time to review, and if necessary, rescind the IER program regulations. However, on December 1, 2017, the US District Court for the District of Columbia in National Venture Capital Association v. Duke vacated USCIS’ final rule to delay the start date of the IER program.
The Obama administration published the IER to allow an unlimited number of foreign entrepreneurs to apply for parole in order to direct and grow start-up businesses in the US based on the use of American investment. The greatest advantage of the IER over the E-2 treaty investor visa is that it is not limited to countries that have certain treaties with the US. Among others, foreign nationals from India and China are not eligible for E-2 visas. Under the EIR, DHS may grant parole on a case-by-case basis to foreign entrepreneurs who demonstrate that their stay in the US would provide a significant public benefit through their business venture and that they warrant a favorable exercise of discretion. Foreign entrepreneurs granted parole will obtain employment authorization to work only for their start-up business. The spouses and children of the foreign entrepreneur may also be eligible for parole and spouses may apply for work authorization once in the US. IER parole may be granted for up to three entrepreneurs per start-up entity.
USCIS published instructions on how to apply for parole under the IER. Entrepreneurs applying for parole under this rule must demonstrate that they:
•possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation;
•play a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business;
•will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
(1) the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
(2) the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
(3) they partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
The foreign entrepreneur must file the Form I-941 along with the filing fee of $1,200 and the biometrics fee of $85. The spouse and children must file the Form I-131 for the travel document and the spouse files the Form I-765 for the employment authorization document.