Earlier this year, on January 17, 2017, the Department of Homeland Security (DHS) published a final rule establishing a parole program for international entrepreneurs seeking to improve the ability of certain startup founders to remain in the United States legally in order to grow their companies and help create new jobs for U.S. workers.

On July 11, 2017, less than a week before the final rule was set to take effect, DHS delayed the implementation of the rule, foreshadowing that it would seek to rescind the rule altogether pursuant to an Executive Order (EO) signed by the President on January 25, 2017. To counter the rule’s delay and ultimate rescission, entrepreneurs, startup companies, and a trade association joined together to challenge this action by DHS by filing a lawsuit in federal court.

DHS originally estimated that approximately 3,000 entrepreneurs will be eligible to apply under this rule annually. If the rule is allowed to take effect, these entrepreneurs would then be granted a stay of up to 30 months, with the possibility of an additional 30 month extension if they meet certain criteria, in the discretion of DHS.

As there are currently limited visa options for international entrepreneurs this rule would create an avenue in our immigration system for innovators and allow entrepreneurs the opportunity to establish new business opportunities in the United States, contribute to the economy, and help maintain the United States’ competitive edge in the world marketplace of ideas.

The plaintiffs in the lawsuit—led by the National Venture Capital Association—consist of prospective entrepreneurs, or companies founded by these entrepreneurs, who had hoped to be able to take advantage of the new program in order to oversee their startup companies and ensure the overall success of their businesses in the United States. The plaintiffs argue that without other existing legal visa options for them they will be forced to close their businesses’ doors and take their job opportunities elsewhere.

The lawsuit argues that DHS failed to comply with the Administrative Procedures Act’s (APA) notice and comment requirement. In this vein, the plaintiffs hope to force DHS to implement the International Entrepreneur Parole program and begin accepting applications as soon as possible.