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Proposed Rule to Remove International Entrepreneur Parole Program

30 May

On May 29, 2018, the U.S. Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register for the Removal of the International Entrepreneur Parole Program with a deadline for public comment of June 28, 2018.

The International Entrepreneur Parole Program (“Program”) created a limited option for certain foreign entrepreneurs to enter the United States.  Under the Immigration and Nationality Act (INA), “parole” allows on a case-by-case basis for a foreign national to be physically granted entry to the United States for significant public benefit or urgent humanitarian reasons for a period of time.  Parole does not grant the recipient any formal immigration visa status, but does allow for temporary work authorization and re-entry to the U.S. after foreign travel.  The International Entrepreneur Rule defined “significant public benefit” to allow application with U.S. Citizenship and Immigration Services by certain foreign entrepreneurs who could demonstrate economic growth and job creation resulting from their investment activities.

As part of the announcement, U.S. Citizenship and Immigration Services (USCIS) indicated the DHS rationale for removal of the Program:

  1. The Program is not the proper vehicle to retain the best and brightest individuals because the grant of parole is discretionary and only the entrepreneur, but not the derivative family members, may be granted parole.  The Program also is not the proper vehicle because U.S. workers and investors would not be able to rely on and predict approval, which is discretionary;
  2. The INA already provides for investor visa categories and entrepreneurs should consider using these existing avenues for nonimmigrant work visas and immigrant visas.  Congress could also amend an existing investor visa category or create a new visa category by statute, rather than relying upon DHS interpretation and rule-making; and
  3. USCIS resources are limited and spending resources to implement the Program is out of sync with DHS’s current policy priorities, which include reviewing other existing immigration programs, developing new proposed regulatory changes and carrying out initiatives to better deter and detect fraud abuse.

DHS previously delayed implementation and sought to rescind the International Entrepreneur Parole Program without any public notice or comment, but the U.S. District Court for the District of Columbia overturned the delay and required DHS to begin accepting applications on December 1, 2017, as previously reported by Foster, at least until DHS followed the proper Administrative Procedure Act (APA) procedure for rescinding the rule.

According to the proposed rule, if the Program is rescinded then parole and associated employment authorization granted to individuals under this Program would automatically be terminated on the effective date of the final rule and those individuals could begin accruing unlawful presence once parole is terminated.