Employment-Based Sixth Preference: Is it For Real?

Employment-Based Sixth Preference: Is it For Real?

January 04, 2018

By: Joseph M. BarnettBernard P. Wolfsdorf, Cliff Rosenthal

With the new Form I-941, Application for Entrepreneur Parole in place, for now, our firm has received numerous questions from foreign nationals about a potential path to green card status through U.S.-sponsored entrepreneurship.

In 2013, a bill, called the Start-Up Visa Act, was proposed in the U.S. Senate to establish an employment-based immigrant visa for alien entrepreneurs, who have received significant capital from investors to establish a business in the U.S. This bill would have created a new employment-based category – sixth preference (EB-6) – for sponsored entrepreneurs who meet certain job creation, capital investment, or revenue-generating standards.  However, this bill was never enacted into law, and there is currently no EB-6 immigrant category.

Nevertheless, foreign entrepreneurs may obtain parole status within the U.S. through the International Entrepreneur Rule (“IEP”).  Unfortunately, parole can be terminated by USCIS at any time, and those under parole can technically still be detained by U.S. Immigration and Customs Enforcement (“ICE”), as they are not in the U.S. under lawful immigrant status.

The International Entrepreneur Rule from January 2017 provides that an alien may be considered for parole if:

  • A U.S. business entity (a) was created within 5 years immediately preceding the filing date of the alien’s parole request, (b) has lawfully done business since its formation, and (c) has potential for rapid growth and job creation;
  • The alien either (a) possesses at least 10% of the business entity at the time of the parole request, and (b) has a central and active role in the operations of that entity, such that the alien is well-positioned, due to his or her knowledge, skills, or experience, to substantially assist the entity with the growth and success of its business; and
  • The business entity has either received, within 18 months immediately preceding the filing date of the alien’s parole request, (a) a “qualified investment” amount of at least $250,000 from a “qualified investor,” or (b) at least $100,000 through one or more qualified government awards or grants.

The IEP adds a new section 8 CFR § 212.19 to provide guidance for using the parole for entrepreneurs of start-up entities based upon significant public benefit.  Unfortunately, the U.S. Government Publishing Office and the Electronic Code of Federal Regulations have yet to include the final rules of the IEP for public use.  Further, the instructions to Form I-941 contain requirements that are different from the requirements contained in the International Entrepreneur Rule (for more information on the inconsistencies, click here) .  We are hopeful that USCIS will provide guidance to clarify these important requirements.

2018-12-11T18:16:24-08:00 January 4th, 2018|

WR is a world leader in global mobility using WRapid, the firm’s immigration management system Powered by Salesforce, to facilitate the movement of talent worldwide.

About the Author: