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August 25, 2016 proposed Parole program for international entrepreneurs – what is it?

Q: Is this a new “Startup Visa?”

A: No. In fact, this isn’t a visa at all.

This is a proposed regulation – not yet a final rule. The August 24, 2016 publication of the proposed rule will need to be followed by a comment period for the public, then an indeterminate period during which USCIS will consider any comments, decide whether to make any changes (and make them), and possibly publish the rule in a final form in order for it to become a formal regulation.

The intent of the proposed rule is to permit the use of an existing law allowing “parole” (temporary admission to the US) - and work authorization for people allowed in on parole - to benefit entrepreneurs who meet a certain set of tests. There has long been a rule allowing USCIS to issue parole for “urgent humanitarian reasons or significant public benefit” – typically, this has been used for situations such as people needing urgent medical care who are for whatever reason ineligible for other more traditional visa types. The proposed rule extends the use of this existing rule to entrepreneurs who meet these tests.

There has never truly been a “startup visa” – though there are other visas we often use for entrepreneurs, and there have been proposals for startup visas in the past (actually, this new program borrows some ideas from a few of these earlier proposals).

Q: What is required to get this new Parole for founders?

A: There are three main requirements, though the third can be met in a variety of ways:

  • The Founder using this program has at least 15% equity ownership AND has an “active and central role” in the business – though the meaning of “active and central role“ isn’t well-defined at this stage, we would assume that most executive/lead roles would qualify.
  • The startup was formed in the US within the last three years
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation – there are three ways to meet this test:
    • Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments – it’s not yet clear at this point what the standard for an “established” record of “successful” investment will be;
    • Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
    • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation – while again a somewhat vague standard, this holds the promise of some flexibility in adjudication.

An entrepreneur who can meet these requirements may be eligible for parole and employment authorization to come to the US and pursue the business of their startup.

Q: How long can an entrepreneur stay in the US under this new program?

A: Under the current proposed regulation, entrepreneurs would initially be granted up to two years in the US. The proposed rule provides for an extension of up to three years where it can be proven that the entrepreneur and the startup entity continue to provide a “significant public benefit.” Here, “significant public benefit” is yet another vague term but with a definition that at least theoretically holds the promise of flexibility: it can be demonstrated by evidence of substantial increases in capital investment, revenue or job creation.

So, the proposal allows for a total of up to five years.

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.