The US Citizenship and Immigration Services will accept applications to comply with a recent court order, but will work concurrently to publish rules to rescind the program entirely. 

The US Citizenship and Immigration Services (USCIS) announced on December 14 that it will take steps to implement the International Entrepreneur Rule (IER) in compliance with a December 1 ruling from the US District Court for the District of Columbia. In National Venture Capital Association v. Duke, the court vacated a July 11, 2017 rule implemented by the US Department of Homeland Security (DHS) that had delayed the IER’s effective date until March 14, 2018, to ensure compliance with Executive Order (EO) 13767. This EO directed the DHS to ensure parole authority is exercised only on a case-by-case basis and only when the applicant demonstrates urgent humanitarian reasons or a significant public benefit.

Under the current rule, qualified applicants may be granted parole in the United States on a discretionary basis if they can demonstrate that they

• possess a substantial ownership interest (at least 10%) in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation;

• have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business;

• will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that

  • the start-up entity has received a significant investment of capital from certain qualified US investors with established records of successful investments;

  • the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or

  • they partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

• otherwise merit a favorable exercise of discretion.

Applicants must first file Form I-941, Application for Entrepreneur Parole, with the required filing fee of $1,200 (including an additional $85 biometric services fees), and supporting documentary evidence that demonstrates eligibility under the above criteria. If this application is approved, the entrepreneur must then visit a US consulate abroad to obtain proper travel documentation before appearing at a US port of entry for a final parole determination. Eligible applicants may be granted an initial period of parole of up to 30 months, with the possibility to extend the period by up to 30 additional months. Parole under the IER program is limited to three entrepreneurs per start-up entity.

Although USCIS will accept Form I-941 to comply with the December 1 ruling, it remains to be seen how these applications and subsequent requests for parole will be adjudicated given the discretionary nature of parole and the administration’s stated goal of revoking the IER program through additional rulemaking.