Exciting New Opportunity To Enter The U.S.: The “International Entrepreneur Rule”

By Attorneys Devin M. Connolly and Nancy E. Miller

It is well known that there are limited ways of lawfully residing in the U.S.  It is most commonly allowed on the basis of family relationships or on the foreign national possessing certain employment stills.  This has been relatively constant over the years.  However, it appears that there is a new way for people to potentially reside in the U.S. with valid immigration status.

The Department of Homeland Security has proposed the “International Entrepreneur Rule.”  This rule would allow foreign nationals to be paroled into the U.S. if they can demonstrate that their entry to the U.S. would provide a significant public benefit due to their role as an entrepreneur of a start-up entity.  The Department of Homeland Security estimates that perhaps as many as 3,000 people per year may be eligible for parole into the U.S. under this program.

As with all applications for entry into the U.S., there are several requirements that applicants must meet to be eligible under this program.  First, they must show that they are a sufficient “entrepreneur.”  An “entrepreneur” is defined as someone that possesses a substantial ownership interested in a start-up entity and has a central and active role in the operations of that entity.  They cannot be simply a passive investor.

In addition, the underlying business must also meet the definition of “start-up entity.”  This has been defined as a U.S. business entity that was formed under federal or state law, was formed within the 3 years immediately preceding the filing of the application for parole, etc.  It is also required that the business have substantial potential for rapid growth and job creation.

The Department of Homeland Security will also look closely at the money that has been invested in the start-up entity.  It is required that the business has received a qualified investment of at least $345,000 from one or more qualified investors in the 365 days prior to filing the application for parole into the U.S.  Alternatively, the business may have also received at least $100,000 through a qualified government award or grant in the 365 days prior to filing the application for parole into the U.S.

A “qualified investment” is an investment made in good faith that is a purchase from the start-up entity of equity or convertible debt.  A “qualified investor” is a U.S. citizen, lawful permanent resident, or perhaps an organization, that has made sufficient investments of at least $1,000,000 over the last five years, and has also created full-time jobs or generated substantial revenue for the start-up entity.

When submitting an application for parole under this program, an applicant must be sure to clearly demonstrate their eligibility for parole. Issues to be addressed include evidence of capital investments from qualified investors; proof of the start-up entity’s goods or services; the applicant’s knowledge, skills or experience that justifies their active role in the operations of the entity; and evidence that the entity has experience sufficient revenue and growth.

The U.S. Citizenship and Immigration Service will weigh all submitted evidence and then make a discretionary decision on whether to grant the applicant parole into the U.S.  If granted, the applicant will be paroled into the U.S. for up to 2 years.  This initial grant of parole may also be extended beyond 2 years by applying for re-parole.  Applicants will also be permitted to leave the U.S. during their parole period and thereafter return to continue their residence in the U.S.  Finally, a person’s spouse and children may also apply for parole into the U.S.

This is an exciting new opportunity for certain foreign entrepreneurs.  It is clearly a complex process, but all of the hard work will be worth it for the opportunity to reside in the U.S. Be sure to consult with an experienced and knowledgeable immigration attorney to maximize your chances for success.