Finally! New Proposed Immigration Option for Foreign Entrepreneurs Finally! New Proposed Immigration Option for Foreign Entrepreneurs

Finally! New Proposed Immigration Option for Foreign Entrepreneurs

In the ongoing and increasingly heated debate over immigration reform, one of the most critical and consistently overlooked needs of our immigration system includes options for foreign entrepreneurs.  Within the existing structure of U.S. immigration law and policy exists a number of employment-based temporary and permanent visa solutions.  However, a quick analysis reveals there are virtually no options for foreign entrepreneurs, even when such entrepreneurs receive substantial private funding and grants here.  The limitations and inflexibility of our immigration system has led to an exodus of talent and countless missed opportunities for job creation and economic growth.  The seeds of entrepreneurship are often planted during undergraduate and graduate study at U.S. institutions and instead of launching or nurturing such enterprises here, many foreign students are forced to explore more sustainable opportunities for themselves and their ideas abroad.
 
In November 2014, President Obama highlighted the value of foreign entrepreneurship and associated job creation during his controversial Executive Action on Immigration proposal.  While some of the President’s other efforts have been stymied by the courts, U.S. Citizenship and Immigration Services recently published a proposed rule which would allow certain foreign nationals to apply for temporary parole or permission to enter or remain in the U.S. for the exclusive purpose of launching or scaling their business.  The proposed rule is currently within the public comment period, ending October 13, 2016, and emphasizes entrepreneurship which provides significant public benefit through economic growth and jobs.  Here is a brief summary of the critical elements contained within the proposed rule which would only go into effect immediately upon publication of a final rule (potentially before the end of the year):
 
  • Entrepreneur must hold at least 15 percent ownership interest in the enterprise and have an active and central role in its operations;
  • Enterprise was formed in the U.S. within the last three (3) years; and
  •  Enterprise has substantial and demonstrated potential for rapid business growth and job creation as evidenced by: 
    • Receipt of significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
    • Receipt of significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
    • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the entity’s substantial potential for rapid growth and job creation.
The proposed rule would permit entrepreneur parolees an initial stay of up to two (2) years with an opportunity to extend stay for an additional three (3) years but only if the entrepreneur and the start-up enterprise continue to meet the government’s objectives related to public benefit and job creation.
 
While the possibility of this temporary parole option still falls short of addressing the longer term and permanent needs of foreign entrepreneurs, it is very welcome relief and consistent with the tradition of patch-worked immigration policy in this country.  Foreign entrepreneurs, along with the rest of us, will need to wait a little while longer for sustained and comprehensive reform of our immigration laws.
 
For additional information regarding immigration options for foreign entrepreneurs or any other immigration-related needs, please contact Jenifer Brown, Christl Glier or another member of the Immigration practice group.
 
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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