Update on the International Entrepreneur Rule: A New Hope…. Until the Empire Strikes Back

By Joseph Barnett

The International Entrepreneur Rule (“IER”) is back in the news, as the U.S. District Court for the District of Columbia recently granted summary judgment against the U.S. Department of Homeland Security (“DHS”) for its delay of the implementation of the Obama-era immigration rule which allowed certain foreign entrepreneurs to obtain immigration “parole” to the temporarily enter the U.S., despite lacking a visa or green card.  The purpose of the IER is to provide an alternative to a “Start-Up” visa which was part of the stalled Comprehensive Immigration Reform in 2013 and to prevent the “brain drain” that occurs when entrepreneurs who wish to start businesses in the U.S. cannot qualify under current visa categories.

Our firm previously blogged about IER in August 2016 when the Advanced Notice of Rulemaking was circulated, and in January 2017 when the final rule was published in the Federal Register.

Entrepreneurs who are interested in applying under the IER must submit a Form I-941, Application for Entrepreneur Parole.  However, the instructions to Form I-941 contain requirements that are different from the requirements contained in the final rule published in January 2017. Specifically:

  • The instructions require a 15% ownership stake in the start-up entity; 10% for extensions and amendments, whereas the January 2017 final rule only requires 10% ownership for the initial application and 5% ownership for amendments and extensions).

 

  • The instructions require proof of formation in the last three years, whereas the January 2017 final rule allows work for entities formed within the last five years

 

  • The instructions state that within the last year the applicant must have received an aggregate of $100,000 in government grants or $345,000 from qualified investors, whereas the January 2017 final rule requires only $250,000 of aggregate funding from qualified investors and gives an 18-month timeframe to aggregate either private or public funds.

Compounding the confusion surrounding the IER is the Trump Administration’s explicit lack of support surrounding the IER, despite the economic benefits and “merit” such entrepreneurial activity would bring to the U.S.  In fact, DHS may end up rescinding the IER.  As is the case with other U.S. immigration benefits, it’s becoming tougher and tougher to qualify as the government seeks enact new rules making it tougher for foreign nationals to work in the U.S.

The Trump Administration has indicated an intention to terminate this program creating uncertainty. However, for those with no other options, who fully understand the potential risk of applying for a benefit that can be terminated, we are ready to try and help those seeking such entrepreneur status.

Wolfsdorf Rosenthal LLP is a full-service immigration law firm known worldwide for its unmatched excellence in providing top-quality U.S. immigration representation. Subscribe to our immigration blog to remain updated and contact Wolfsdorf Rosenthal LLP Immigration Law offices if you have any questions. We have Immigration Law Offices in New York and Los Angeles.

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