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On Aug. 26, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a notice of proposed rulemaking for an International Entrepreneur Rule, and provided an advance version of the proposed rule for public review.

According to an announcement from USCIS, the proposed rule will allow the Department of Homeland Security (DHS) to exercise discretion, on a case-by-case basis, to provide parole for foreign entrepreneurs who are directing the development of a startup business entity in the United States and whose involvement in the startup would provide a significant public benefit.  USCIS proposes to amend its regulations in connection with Section 212(d)(5) of the INA to provide a “transparent framework” for the exercise of agency discretion and the case-by-case adjudication of parole requests for start-up entrepreneurs.

In order to be considered for parole under the proposed rule, an immigrant entrepreneur would be required to:

  • Own at least 15 percent of the startup and be actively involved in its operation
  • Have formed the business in the United States within the previous three years.

The entrepreneur must also demonstrate that his or her business the potential for job creation and growth by showing:

  • Investment of a minimum of $345,000 from qualified U.S. investors with success in prior investments
  • The receipt of grants or awards from federal, state, or local government entities.

The proposed rule also provides flexibility for an entrepreneur who may only partially satisfy one or both of the above criteria, by permitting the entrepreneur to provide evidence of the start-up’s potential for growth and job creation.

Under the proposed rule, a qualifying entrepreneur may receive parole for a two-year period, and may be eligible for renewal based upon the success of the start-up.

When finalized, the proposed rule may hold potential for immigrants who find themselves caught in current immigrant visa backlogs, as well as individuals who seek to emigrate from countries that do not have E-1 or E-2 visa status such as Mainland China and Vietnam.  Further analysis of the proposed rule may also illuminate potential opportunities for EB-5 investors who are awaiting the availability of a visa number.

Upon publication of the rule in the Federal Register, the public will have 45 days during which to provide comment on the rule.

As we review the text of the proposed rule thoroughly, we will provide additional insights and discussion about the potential opportunities it could present to immigrants in different contexts.

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Photo of Laura Foote Reiff‡ Laura Foote Reiff‡

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance strategies and programs for both small and large companies. Laura performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation.

Laura represents many businesses in creating, managing and using “Regional Centers” that can create indirect jobs toward the 10 new U.S. jobs whose creation can give rise to EB-5 permanent residence for investment. She coordinates this work with attorneys practicing in securities law compliance, with economists identifying “targeted employment areas” and projecting indirect job creation, and with licensed securities brokers coordinating offerings. She also represents individual investors in obtaining conditional permanent residence and in removing conditions from permanent residence.

Laura’s practice also consists of managing business immigration matters and providing immigration counsel to address the visa and work authorization needs of U.S. and global personnel including professionals, managers and executives, treaty investors/ traders, essential workers, persons of extraordinary ability, corporate trainees, and students. She is an immigration policy advocacy expert and works on immigration reform policies.

Admitted in the District of Columbia and Maryland. Not admitted in Virginia. Practice limited to federal immigration practice.