UNITED STATES – DHS moves to implement International Entrepreneur Rule while drafting rule to rescind it

Proposing and finalizing a regulation revoking the Entrepreneur Rule will likely take several months.

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The Department of Homeland Security announced Thursday that it is taking steps to implement the International Entrepreneur Rule to comply with a court order. However, the agency simultaneously announced that it is in the final stages of drafting a notice of proposed rulemaking to repeal the rule.

Proposing and finalizing a regulation revoking the Entrepreneur Rule will likely take several months.

Key points:

  • Applicants must have created a start-up company within the previous five years, meet minimum capital requirements (at least $250,000 from established U.S. investors or at least $100,000 in grants from government entities) and demonstrate evidence that it will provide a significant public benefit to the U.S.
  • Applications for Entrepreneur Parole (Form I-941), additional information about qualifying criteria and instructions for applying for a travel document and employment authorization document are available on the USCIS entrepreneur rule webpage.

Background: The International Entrepreneur Rule was promulgated Jan. 17, 2017 in the final days of the Obama administration and was scheduled to take effect July 17, 2017. The rule allows foreign nationals to apply for a form of temporary stay (parole) in the U.S. in order to establish and grow a business. Before the rule went into effect, the Trump administration issued a rule delaying implementation until March 2018, and in November it took steps to repeal the rule. Several individuals and companies sued, and on a court ruled Dec. 1 that the delaying rule had not been put through proper rulemaking procedures, such as a public notice and comment period. The court vacated the agency’s rule that delayed implementation of the Entrepreneur Rule.

BAL Analysis: The grant of parole is a discretionary decision by DHS. A grant of parole under the Entrepreneur Rule would be valid for 2½ years initially, with the possibility of renewal for an additional 2½ years. Individuals and entities seeking to apply under the Entrepreneur Rule should be aware that the agency is proposing to remove the rule via procedures that would take at least several months. Even if parole is granted under the rule, the discretionary nature of this form of relief means that the government may revoke a grant of parole upon a determination that it no longer provides a significant public benefit. BAL will monitor both the agency’s implementation of the rule and the regulatory process, and will provide updates as more information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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