On Monday, May 10, 2021, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas withdrew from the Federal Register, the rule proposed by the Trump Administration in May 2018, seeking to rescind the International Entrepreneur Parole (IEP) program and its corresponding regulations.
President Obama had introduced the IEP program in January 2017, shortly before he left office. The program provides qualifying foreign entrepreneurs (who have secured funding for their U.S. start-ups, and who can prove that it is in the public interest of the U.S. for them to work and grow their start-up companies in the U.S.), with the option of applying for "parole" status.
Parole status is not the same as holding a visa status. It affords the beneficiary fewer options than a regular visa status does - for example, someone admitted to the U.S. in parole status, is not permitted to change from that status to another visa status within the United States. Despite its limitations, the IEP program could be an attractive immigration option for foreign founders of U.S. companies, as the regulations were designed with the start-up company ecosystem in mind. Importantly, it remains an option even when the H-1B visa quota has been exhausted, or when an applicant's F-1 OPT work authorization is running out. If approved, the beneficiary will be allowed to enter the United States in parole status for up to two years (i.e. will be "paroled" into the U.S), with automatic employment authorization, so he/she can start working legally for the start-up immediately upon entry to the U.S. Spouses and dependent children are permitted to enter as parolees for the same period of time, and spouses are eligible to apply for an Employment Authorization Document (EAD). The regulations also allow for extensions of up to three additional years, if the applicant meets the criteria for renewing the parole status.
As detailed in our April 22, 2021 blog post, although the IEP program has been in existence since early 2017, the Trump Administration was always hostile to the program and tried to end the program from the outset. Despite the fact that the program was established as a final regulation, and despite the fact that some foreign entrepreneurs sought to take advantage of it and filed the expensive IER applications with USCIS, under the Trump Administration USCIS refused to adjudicate these applications. The National Venture Capital Association (NVCA) sued the Trump Administration to force them to take action on the pending requests. While the NVCA succeeded in its lawsuit with a federal court ordering USCIS to act on the pending applications, during the Trump era, despite USCIS approved only one of the 28 requests that were filed, and either denied or chose not adjudicate the remainder.
The recent action taken by Secretary Mayorkas to withdraw the Trump-era proposed regulation seeking to do away with the IER program, signals the willingness of the Biden Administration to entertain such applications going forward. Because Congress has not yet passed a Start-Up Visa law, it is very important that qualified foreign entrepreneurs take advantage of this IEP program. By filing IEP applications and renewals, they will provide the U.S. government with important data regarding their economic contributions to the United States. The U.S. government can track these economic benefits and the data will add to the government's and the public's understanding of the contributions of foreign entrepreneurs to the U.S. This data and understanding might finally spur passage of Start-Up Visa legislation, something the U.S. has long-needed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
