On May 10th , the Wall Street Journal reported that the Biden Administration is looking to revive an Obama era rule granting foreign investors a nonimmigrant visa option. As a first step, the Administration will formally withdraw the proposed rule published at 83 FR 24415 on 5/29/18, which would have removed regulations on the international entrepreneur parole program.
Unfortunately, the Obama administration waited until the very last minute to make a nonimmigrant visa option available to foreign entrepreneurs. While the L and E visa options are immediately available options, the E-2 Visa is restricted to treaty countries (for instance, citizens of India and China do not qualify for the E-2 visa). The L-1A visa option has always suffered from a perception problem in that the USCIS uses the same yardstick to measure recent startups as they do well-established multinational corporations. This leads to unreasonable requests for documentation and evidence evincing eligibility. And for this reason, “startups” have found it very difficult to qualify and sustain petitions filed under the L-1 visa program.
The International Entrepreneurship Rule (IER), planned to make available “parole” on a case-by-case basis to entrepreneurs who would provide significant public benefit to the United States; some key factors for eligibility would be:
- the entrepreneur’s ownership stake and leadership role
- the growth potential of the startup
- competitive research grants ($100,000 or more) from federal, state, and local government agencies; and/or
- investment by qualified American investors ($250,000, or more).
The proposed rule would have allowed qualified entrepreneurs to remain in the United States for an initial period of up to two years, followed by one additional period of up to three years contingent on meeting certain additional benchmarks.
While the Trump Administration did not favor the rule, it did not follow through on an initial effort to kill it. Signaling instead that it was not favored, was adequate to keep applicants at bay. Hardly anyone applied and it was rumored that no more than ten applications were ever filed under the program.
While it is relatively easy for a foreign investor to start a business in the U.S., running it from and settling in the U.S. has been anything but. So, it is indeed a welcome sign that the current administration is thinking about reviving the IER.
However, it must be understood that while the proposed rule is indeed a step in the right direction, it must undergo certain necessary changes to be appealing to foreign entrepreneurs. At the outset, in the immigration context, the concept of “parole” is used to refer to a “travel document” that allows the holder to enter and temporarily remain in the United States. Unfortunately, it also does not permit the holder to change, or otherwise adjust status in the U.S. This could pose a significant problem for the entrepreneur and his family. For instance, any plan that requires the entrepreneur to serve as an employee upon the sale or reorganization of a business, may not be viable.
An additional problem may be encountered by individuals who are already in the U.S. in a different visa category (H or L) but would have to give up their ability to change or adjust status if they chose to obtain “parole” through the IER.
What is also not clear is whether seeking “parole” would invalidate the applicant’s immigrant visa option making it impossible to adjust status while temporarily seeking the protection of the IER.
Allowing holders of the IER “visa” to change and/or adjust status in the U.S. would allow for greater flexibility and make the category more appealing to foreign entrepreneurs.
Spouses can work with proper work authorization (must file an application for employment authorization (EAD) on Form I-765); however smaller couples who jointly run their business may find this a significant challenge given the fact that current average processing times for EADs is close to 10 months. In other words, the rule must be revised to allow spouses who work together, when appropriate, to acquire status jointly.
Other changes including offering the initial visa for a three-year period instead of two would allow the foreign entrepreneur to consolidate investment and run things uninterruptedly for a longer period, before having to apply for an extension. These small but necessary changes could see this visa option becoming an attractive alternative to entrepreneurs from India and China. It is not enough to merely offer an immigration option if it does nothing to serve the needs of the entrepreneur it is designed to benefit.
After the current census, one thing is abundantly clear. America is desperately in need of immigrants and this is not an exaggeration. Slowing population growth means slowing economic growth. Older adults are likely to outnumber children for the first time in our history. While having more children is always an option, the significant advantage one gains by having a more welcoming immigration policy is obvious. We can both select and monitor the arriving immigrant and make the policy work for us. A well-educated, highly qualified immigrant with significant resources like the one designed to benefit from the IER would be perfect. Having contributed nothing to educate the candidate, or help him raise the finances, we would simply benefit from the entrepreneurial zeal and job creation that would result from his or her immigration. Creating ways for legal immigrants to enter the U.S. and contributing to the economy would be mutually beneficial and rewarding. As former President Obama said in his State of the Union Address in 2016, “America is every immigrant and entrepreneur from Boston to Austin to Silicon Valley, racing to shape a better world. That’s who we are.”