USCIS IER Program

The International Entrepreneur Rule (IER)

Internation Entrepreneur Program USCIS applications

As we launch into a new year, this second blog in a series of blogs regarding the new International Entrepreneur Rule (IER), will update the current state of play regarding implementation of the rule by way of Entrepreneur Parole.

Warning – possible IER Rescission:

As a result of federal court order, USCIS is now accepting applications for the IER program. Although the Department of Homeland Security (DHS) plans to publish a proposed rule to eliminate the IER, until the rule is rescinded, international entrepreneurs who meet the program requirements are free to apply. However, it is important to bear in mind that the program may be short-lived. DHS must comply with all legalities before rescinding the rule, a process which is likely to take at least a few months to complete after publication of the rescission rule. As such, we are warning our clients that parole could be revoked if the IER is rescinded. We are also advising our clients to carefully weigh the benefit of being able to work in the United States against this “worst case scenario”, and to review all alternative visa options with immigration counsel before seeking Entrepreneur Parole.

Errors in Form Instructions:

With the announcement that USCIS would begin accepting applications for Entrepreneur Parole under the IER, the agency also released a new Form I-941, Application for Entrepreneur Parole. Following the release of the form, USCIS acknowledged that the form instructions contain errors, and that it is working to make the necessary corrections. Until then, applicants are instructed to complete the form consistent with the requirements contained in the final rule.

Requirements:

The final rule requires the applicant-entrepreneur to demonstrate:

  • The entrepreneur holds at least a 10% ownership stake in the start-up entity. The entrepreneur holds a central, active role in the operations of the start-up.
  • The entrepreneur’s knowledge, skills, or experience will substantially assist with the growth and success of the start-up.
  • The start-up’s formation occurred in the last five years.
  • The start-up received substantial capital investment or awards as follows:
    1.  Within the last 18 months, received an aggregate of $100,000 in government grants or $250,000 from qualified investors.
      • A government grant must be from a U.S. federal, state, or local entity. The grant must be for economic development, research and development, job creation, or another similar monetary award directed at start-ups. The grant may not be part of a contract for goods or services, and must come from an entity or agency with a track record of granting funds to start-ups.
      • A qualified investor must have a significant track record of successful investments in other start-ups.
    2. If the funding criteria is only partially met, the entrepreneur may provide compelling evidence that the entity has substantial potential for rapid growth and job creation. A single start-up may sponsor up to three entrepreneurs for parole. An entrepreneur granted parole is able to work in the United States for the start-up incident to her or his parole.

Filing:

The applicant must file Form I-941, along with a $1,200 filing fee and an $85 biometrics fee.

After Approval:

Upon approval of the I-941, the entrepreneur will be issued an I-797 Notice of Action and an I-512L Authorization for Parole of an Alien into the United States. Canadians may take these documents directly to the U.S.-Canada border to be paroled into the U.S. All others will be required to obtain travel documentation (such as a boarding foil) at a U.S. consulate. The entrepreneur would then travel to the United States and request parole when appearing before U.S. Customs and Border Protection officials at the port of entry.

Work Authorization:

Entrepreneurs granted parole through this program can receive up to five years of work authorization, in two 30-month increments.

Re-Parole (Extensions):

To receive an extension of parole, entrepreneurs will need to again file Form I-941, demonstrating that they maintain a 5% ownership stake in the start-up and continue to provide a public benefit to the United States through their role as a founder of the entity (including maintaining a central and active role with the start-up). In addition, the entrepreneur must demonstrate that the start-up:

  • Received $500,000 in qualifying investments, government grants, or government awards;
  • Created at least five full-time qualified jobs during the initial parole period; or
  • Reached at least $500,000 in annual revenue and averaged 20% in annual growth during the initial parole period.

If the start-up does not meet these criteria, the entrepreneur may provide documentation of the start-up’s substantial potential for rapid growth and job creation.

Spouses and Minor Children:

Spouses and children may accompany the entrepreneur by filing Form I-131, Application for Travel Document. USCIS has reportedly updated Form I-131 for dependents of entrepreneurs, but has not yet released the revised form as of the time. Spouses will be able to apply for work authorization after receiving parole.

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