New Foreign Entrepreneur Rule

By Ayda Akalin, Esq.

January 17, 2017

Good news! The Department of Homeland Security (DHS) today published a final rule that may allow certain promising startup founders to begin growing and working on their companies within the United States. This new rule is effective July 17, 2017.

Under this new rule, DHS may use its "parole" authority to grant a period of authorized stay to foreign entrepreneurs who demonstrate that their stay in the United States will provide a significant public benefit through the potential for rapid business growth and job creation.

Eligible entrepreneurs may be granted a stay of up to 30 months, with the possibility to extend the period by up to an 30 additional months for a maximum total of 60 months or 5 years.

Up to 3 entrepreneurs per startup may be eligible for this parole, as well as spouses and children. Entrepreneurs will be eligible to work only for their start-up business. Their spouses may apply for work authorization in the United States, but their children will not be eligible.

Requirements

To be considered under this new rule, the foreign entrepreneur needs to meet the following criteria:

1. Formation of New Start-Up Entity. The entrepreneur should have recently formed (within the past 5 years) a new entity in the United States that has lawfully done business since its creation and has substantial potential for rapid growth and job creation.

2. Applicant is an Entrepreneur. The applicant should be an entrepreneur of the start-up, someone who is well-positioned to advance the company's business. To meet this standard, he/she must provide evidence that he/she: (1) Possesses a significant (at least 10 percent) ownership interest in the entity; and (2) have an active and central role in the operations and future growth of the entity. Merely being an investor is not enough.

3. Significant U.S. Capital Investment or Government Funding. The entrepreneur should further validate, through reliable supporting evidence, his/her startup's substantial potential for rapid growth and job creation. The entrepreneur can satisfy this requirement in one of the following ways:

Investments from established U.S. investors. The startup has received investments of capital totaling $250,000 or more from established U.S. investors (such as venture capital firms, angel investors, or start-up accelerators) with a history of substantial investment in successful start-up entities. OR
Government grants. The startup has received monetary awards or grants totaling $100,000 or more from government entities that typically provide such funding to U.S. businesses for economic, research and development, or job creation purposes. OR
Alternative criteria. The final rule provides alternative criteria under which an applicant who partially meets one or more of the above criteria related to capital investment or government funding may be considered for parole under this rule if he or she provides additional reliable and compelling evidence that they would provide a significant public benefit to the United States. Such evidence must serve as a compelling validation of the entity's substantial potential for rapid growth and job creation.

What You Get If You Qualify

An entrepreneur who meets the above criteria can obtain a grant of parole (permission) for up to 2.5 years. This parole would allow the entrepreneur to legally work on his/her startup in the United States. The entrepreneur's spouse and minor children would also be allowed to stay in the United States. The spouse may also be eligible for work authorization. Children are not eligible for work authorization.

Entrepreneurs granted parole can be considered for re-parole (extension) for an additional 2.5 years if they can show that their startup has shown signs of significant growth since the initial grant of parole and that they continue to have substantial potential for rapid growth and job creation.

Note: No more than three entrepreneurs may receive parole with respect to any one qualifying start-up entity.

What This is Not

Parole means permission. It is not status. It is not a green card. The entrepreneur may subsequently be eligible for other nonimmigrant or immigrant visa options. However, they would have to qualify for those separately and will also have to adjust or change their status outside of the United States.

For More Information

For more information or to discuss whether or not your startup qualifies under this new rule, please contact us at imm@aghnamilaw.com.