March 20, 2023

Volume XIII, Number 79


March 20, 2023

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International Entrepreneur Parole Program: USCIS Issues Policy Guidance

On March 10, U.S. Citizenship and Immigration Service (USCIS) issued an announcement with comprehensive guidance on parole for international entrepreneurs. This program provides opportunity in the United States for some foreign nationals who may not meet the more rigorous requirements of legacy investor visa programs.

In short, the program empowers USCIS to utilize its discretionary parole authority to issue, on a case-by-case basis, a period of authorized stay to foreign national entrepreneurs who hold a substantial financial interest in a start-up entity and can demonstrate that their presence in the United States would provide a significant public benefit via the start-up entity’s potential for job creation and growth.

The recently issued guidance includes the Department of Homeland Security’s criteria evaluating these parole applications and establishes application requirements specifically tailored to capture information necessary for USCIS to complete its adjudication. Below is a brief overview of these requirements for consideration of the benefit.

Applicant Requirements

Central and Active Role: The applicant must have a central and active role in the operations of the startup entity. In this role, the applicant must be well-positioned, thanks to their knowledge, skills, or experience, to substantially assist the entity with the growth and success of its business.

Substantial Ownership Interest: The applicant must have a substantial ownership in the start-up entity. USCIS defines a substantial ownership interest in this context as at least 10% ownership of the start-up entity at the time of adjudication of Form I-941. The applicant may reduce their ownership interest after parole is granted, but the applicant must maintain at least a 5% interest during the initial parole period.

Start-Up Entity Requirements

The applicant’s start-up entity must be:

  • A corporation, limited liability company, partnership, or other entity organized under federal law or the laws of any state, and that conducts business in the United States;

  • Not primarily engaged in the offer, purchase, sale, or trading of securities, futures contracts, derivatives, or similar instruments;

  • Formed within the five years immediately preceding the date the applicant filed the initial parole application and lawfully doing business during any period of operation since its date of formation; and

  • An entity with substantial potential for rapid growth and job creation.

Evidence of Qualified Investment or Government Grant or Award

An applicant can demonstrate the start-up entity’s substantial potential for rapid growth and job creation through a qualified investment by evidencing one or more qualified investments in the 18-month period prior to the filing of Form I-941. The required amount of investment in the startup varies based on the date the applicant filed the Form I-941.

To be considered a qualified investment, the applicant must submit evidence that the investment was made in good faith. Such evidence must include records that show the trail of lawfully derived capital from a qualified investor into the start-up entity. The records must show that the invested capital was used to purchase equity, convertible debt, or other security convertible into an equity commonly used in financing transactions within such entity’s industry. The qualified investment may not come directly or indirectly from the entrepreneur, the entrepreneur’s parents, spouse, brother, sister, son, or daughter, nor may it come from any corporation, limited liability company, partnership, or other entity in which such entrepreneur or the parents, spouse, brother, sister, son, or daughter of such entrepreneur directly or indirectly has any ownership interest.

A qualified investor may be a U.S. citizen or legal permanent resident, or an organization in the United States and operated through a legal entity organized under the laws of the United States or any state, that is majority owned and controlled, directly or indirectly, by U.S. citizens or legal permanent residents of the United States. A qualified investor must also regularly make substantial investments in start-up entities that subsequently exhibit substantial growth in terms of revenue generation or job creation by demonstrating that during the preceding five years:

  • The qualified investor made investments in start-up entities in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within their respective industries comprising a total in such five-year period of no less than the investment amount in the chart below; and

  • Subsequent to such investment by such individual or organization, at least two such entities each either created at least five qualified jobs or generated revenue of at least the amount in the chart below with average annualized revenue growth of at least 20 percent

The required amount of investment and revenue for qualified investors’ prior investments varies based on the date the applicant filed the Form I-941.

Alternatively, an applicant can demonstrate the start-up entity’s substantial potential for rapid growth and job creation through a qualified government award or grant.

At its discretion, USCIS may still consider the applicant for entrepreneur parole if the applicant demonstrates that they are an entrepreneur in a start-up entity but only partially meets one or both criteria for qualified investments or qualified grants, if the applicant provides additional compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

Evidence of Significant Public Benefit

There is no statutory or regulatory definition of significant public benefit. USCIS will consider the totality of circumstances to issue a case-by-case determination.

An applicant need not be outside of the United States to apply. Foreign nationals outside of the United States, in the United States in nonimmigrant status, and those in the country not presently maintaining nonimmigrant status may apply. Procedurally, once the application is approved, those who are in the country would have to depart the United States and appear at a port of entry to request parole into the country. Note that applicants who are in the United States but are not in lawful status may have accrued unlawful presence and may face immigration consequences upon departure from the country.

USCIS may approve an initial application for the applicant to be paroled into the United States for a period up to 30 months. USCIS may approve a single request for re-parole at its discretion for an additional period of up to 30 months. An entrepreneur’s spouse and children seeking parole as derivatives must apply individually for an Applicant for Travel document. The spouse of an entrepreneur parolee, after being paroled into the United States, may be eligible for work authorization and must file an Application for Employment Authorization with USCIS. A child of the entrepreneur is not eligible for work authorization.

Though the International Entrepreneur Parole Program provides an alternative option for entrepreneurs in start-ups, it does not provide a path to permanent residency.

The guidance on the International Entrepreneur Parole Program, contained in Vol. 3 of the Policy Manual, is effective immediately and applies prospectively to applications filed on or after March 10, 2023. This guidance is controlling and supersedes any related prior guidance on the topic.

©2023 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XIII, Number 75

About this Author

Linnea Porter, Greenberg Traurig Law Firm, Atlanta, Immigration Law Attorney

Linnea C. Porter focuses her practice on a wide range of business immigration matters, including representing domestic and multinational employers before the U.S. Citizenship and Immigration Services, the U.S. Department of Labor and the U.S. Department of State. Linnea has extensive experience representing and advising employers in all areas of business immigration, including nonimmigrant visa categories (B, E, F, H, J, L, O, TN), permanent residence (PERM, Extraordinary Ability/Outstanding Researchers, Multinational Managers and National Interest Waivers) and DACA....