Temporary Loophole To Getting A Visa?
Attorney Shares Insights Into Proposed New Immigration Law
U.S. Citizenship and Immigration
Service (USCIS) is issuing a proposed new rule that would give certain
international entrepreneurs temporary permission to be in the U.S. to start or
develop their business here. If the rule, called the International Entrepreneur
Rule, becomes final, it would allow the Department of Homeland Security (DHS)
to use its discretionary authority on a case-by-case basis to give this benefit
to entrepreneurs of startup entities whose stay in the U.S. would provide a
significant public benefit through the substantial and demonstrated potential
for rapid business growth and job creation.
To be eligible, the entrepreneur or enterprise will:
- Have a significant ownership interest in the
startup (at least 15%), and have an active and central role to its operations;
- Was formed in the United States within the past
three years; and
- Has substantial and demonstrated potential for
rapid business growth and job creation, as shown by:
o Receiving significant investment of capital (at
least $345,000) from certain qualified U.S. investors with established records
of successful investments;
o
Receiving significant awards or grants (at least
$100,000) from certain federal, state, or local government entities; or
o 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.
Under the proposed rule,
entrepreneurs may be granted an initial stay of up to two years to oversee and
grow their startup entity in the United States.
A subsequent request for up to three additional years would be
considered only if the entrepreneur and the startup entity continue to provide
a significant public benefit as evidenced by substantial increases in capital
investment, revenue, or job creation.
Comments on the proposed rule
will be accepted for 45 days, after which USCIS will address the comments
received. The rule will not take effect
until such time as a final rule is published.
Note that there is no timeline
for when the final rule may be published.
Sometimes it can take several years to get a final rule, although it is
believed in this instance the Government would like to get it finalized prior
to the November elections. Given the
requirement that the enterprise have been formed within three years of
publication of the final rule, entrepreneurs may not want to rush to form
companies until there is some better clarify from the Government on the timing
of the final rule.
Note also, the discretionary
temporary authority to remain is called “parole.” In the U.S. immigration context, parole is
not an actual “status” such as a visa would provide, but rather just “allowing”
a person to be here. That fact raises a
question of what happens after the two or five years of investing in your
business. There does not appear to be a
provision to convert the temporary stay into a permanent status. No doubt, that will be one of the issues
raised to the government during the comment period. One of the challenges on that point is that
creating a permanent status may require legislative action by the Congress.
For now, existing foreign
enterprises that desire to open a branch or subsidiary in the U.S. should
investigate whether they may qualify for an L or E visa. Still, this is very good news and one solid
step in a positive direction.
Barbara A. Marcouiller, Esquire, is an attorney in Bellevue, Washington
with 23 years of experience in
immigration law, and a master’s degree
in international business and economics.
She is a frequent speaker at immigration law seminars.
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