DHS Finalizes Rule Allowing Grants of Parole and U.S. Entry to Entrepreneurs Starting Companies

A new pathway opens to non-citizens wishing to start businesses in the United States.

** LEGAL UPDATE **

Implementing a 2014 Executive Order by President Obama, the Department of Homeland Security (DHS) has amended its discretionary authority over an immigration benefit known as “parole.” The intent is to deal with a lack of opportunities within the U.S. immigration system for would-be entrepreneurs who want to start a business in the United States.

The primary opportunities for entering the U.S. as an entrepreneur were, until now, based on either having a job offer with an existing employer, having a lot of money to invest, or qualifying to self-petition for a green card based on a “national interest waiver” (NIW).

None of these is a perfect match for someone wishing to create a startup company without personally investing huge amounts of cash. But it’s in the United States’s interest to attract innovation, foster job creation, and reap the benefits of foreign students’ recently gained expertise.

The new rule, which will go into effect July 17, 2017, allows DHS to grant parole on a case-by-case basis to entrepreneurs of startup entities if doing so would provide a significant public benefit by way of potential for rapid business growth and job creation. (See the 1/17/2017 issue of the Federal Register for the full rule.)

Parole is not as beneficial as a green card, a visa, or a permanent right to remain in the United States. Only Congress can grant the latter such rights. It simply means that the person is allowed to live in the U.S. for a time, in this case while working for their startup entity. Parole granted under this rule will provide only a temporary U.S. stay of up to 30 months, plus a possible extension of up to 30 months.

Up to three entrepreneurs per start-up entity may apply for this form of parole.

Spouses and children can apply to accompany the primary parole grantee. Spouses may also apply for work authorization in the United States, but children may not.

With any luck, the foothold gained by the entrepreneur(s) will create a basis upon which to apply for a green card or a long-term temporary visa, if desired, during or toward the end of the parole period.

To apply for parole as an entrepreneur, you will need to demonstrate that:

  • you have a substantial ownership interest in a startup entity created within the past five years in the U.S., which has substantial potential for rapid growth and job creation
  • you have a central and active role in the startup entity, such that you are well-positioned to substantially assist with the business’s growth and success, and
  • your stay in the U.S. will provide a significant public benefit based on your role as an entrepreneur of the start-up entity, because your start-up entity has either received significant capital investments from certain qualified U.S. investors with established records of successful investments or your startup has received significant awards or grants from federal, state or local government entities (such as for economic development, research and development, job creation, or in other relevant categories); you partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation, or you meet either or both of the above and can provide additional reliable and compelling evidence of your startup’s potential for rapid growth and job creation.

No doubt USCIS will issue more information on application procedures as the effective date approaches.