On May 29, 2018, U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register proposing elimination of the International Entrepreneur Rule (IER). Public comments on the proposed elimination are due by June 28, 2018. USCIS expects that, after the comments are considered and a final rule is published, the final rule would take effect 30 days after publication.
The IER regulations, 8 CFR § 212.19, were meant to allow qualifying foreign national entrepreneurs to enter the U.S. pursuant to a grant of temporary parole (referred to as “Entrepreneur Parole”) to develop and grow new businesses. “Parole” is entry into the U.S. based on agency discretion rather than on a statutory visa category. (U.S. immigration law has no visa category specifically for company founders to work in the U.S. in the startup they founded. The IER was intended to address that gap and therefore has been called, albeit inaccurately, “the startup visa.”) The IER took effect on July 17, 2017, but USCIS attempts to delay or discourage applications are likely responsible for the low number of applications to date. According to USCIS, 13 applications have been filed, and no applications have been approved. The proposed rule to eliminate the IER offers hypotheticals but no clarity on how pending or approved IER applicants will be treated when IER elimination occurs.
The proposed rule would withdraw all IER-related changes to USCIS’s Form I-131 (general parole application form) and Form I-765 (employment authorization application form), discontinue the new Form I-941 (“Application for Entrepreneur Parole”), and withdraw IER-related changes to Form I-9, the standard employment eligibility verification form used by employers in the U.S. The proposed rule’s hypotheticals for handling pending or approved IER applicants when IER elimination occurs range from the severe (denying pending applications, and immediately revoking the parole of any entrepreneurs who were granted IER parole, causing them and their families to begin accruing unlawful presence) to the comparatively laissez-faire (processing all applications to completion if filed before the IER’s termination date and allowing any grants of parole to remain in place until their expiration date, which could be up to 30 months later), and several variations in between.
© Jewell Stewart & Pratt PC 2018