USCIS has recently proposed a new rule that will allow the Department of Homeland Security (DHS) to use its existing discretionary parole authority for entrepreneurs of new start-up companies whose continued presence in the United States would provide a significant public benefit. The proposal would allow USCIS to grant parole (temporary admission into the United States) on a case-by-case basis to those foreign entrepreneurs who have a significant ownership interest (15% or more) in a start-up and who have an active and central role in its operations. (Mere investors are specifically excluded.) The new start-up would have to demonstrate a significant public benefit and the potential for rapid business growth and job creation.
In addition, to qualify an applicant must also demonstrate that the entity was formed in the United States within the past three years and is:
- receiving significant investment of capital (at least $345,000) from qualified U.S. investors with established records of successful investments. (Investments made by a parent, spouse, brother, sister, son, or daughter of the entrepreneur are excluded, as are investments by any entity in which the entrepreneur or the entrepreneur’s relatives hold any direct or indirect ownership interest); or
- receiving significant awards or grants (at least $100,000) from a federal, state, or local government entity that regularly provides such awards or grants to start-up entities (not contracts for goods or services); or
- partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
Entrepreneurs who are approved may be granted an initial stay of up to two years to oversee and grow their start-up entity in the United States. Spouses and unmarried minor children may be paroled for up to two years as well. Other requirements include:
- Entrepreneurs may only work for the start-up entity in the U.S., but may begin work immediately upon entering the U.S., using their passport and I-94 reflecting parole status as evidence of employment authorization;
- Spouses can apply for work authorization after admission in parole status prior to commencing work;
- A maximum of three parolee-entrepreneurs per qualifying entity is permitted;
- Following admission, the parolee must maintain household income that is greater than 400 percent of the federal poverty line.
USCIS would consider negative factors that may exist to determine whether the totality of circumstances indicate that parole would provide a significant public benefit and that the applicant merits a grant of parole as a matter of discretion. Such status is revocable if DHS determines the parole no longer provides a significant public benefit, e.g., ceased operations in the U.S. A three-year “re-parole” is possible as long as other conditions are meet.
The proposed rule is now going through the regular notice-and-comment process; the final rule is not expected for some months.