Starting a Business? After a Delay, USCIS is Accepting Applications Under the International Entrepreneur Rule (IER) – at least for now

By: Elizabeth Goings

What Entrepreneurs Need to Know

• After a short delay, USCIS is now accepting requests for parole into the U.S for certain entrepreneurs seeking to start and grow start-up business under the IER program.
• Dependents may also accompany the entrepreneur.
• Although the program is in effect now, DHS may seek to remove it. Entrepreneurs should consult with counsel regarding the IER program or other options.

On December 14, 2017, USCIS recently announced that it will begin accepting applications under the International Entrepreneur Rule (IER).

What is the IER?

Initiated under President Obama, the IER is a program which permits international entrepreneurs who meet certain criteria to apply for parole into the U.S. on a temporary basis in order to develop and grow start-up businesses.

Why was the program delayed?

The IER program was scheduled to take effect on July 17, 2017.  However, when President Trump issued Executive Order 13767 (Border Security and Immigration Enforcement Improvements) in January 2017, the Department of Homeland Security (DHS) published a rule to delay the effective date of the IER’s implementation until Spring 2018. A lawsuit was filed to challenge this rule and the court sided with the plaintiffs.  In National Venture Capital Assoc. v. Duke, the court concluded that in issuing its rule to delay implementation, DHS did not properly go through the notice and comment period required under the law.  In sum, the court vacated the DHS rule and as a result, USCIS announced in December 2017 it would start accepting applications under the IER.

What is the caveat?

Although the court decision allows USCIS to proceed with the application process, entrepreneurs must keep in mind that DHS is in the stage of properly issuing a rule seeking to remove the IER. Thus, it is important that entrepreneurs who are interested in the program consult with immigration counsel to understand how this might affect their future application or parole into the U.S., among other concerns. There may be other immigration options available to entrepreneurs or investors interested in doing business in the U.S.

I'm still interested in the IER program. How can I apply?

At this time, interested international entrepreneurs who meet certain criteria will be allowed to file for the IER program by filing an application with USCIS under Form I-941 (Application for Entrepreneur Rule). This includes entrepreneurs who are active in a start-up entity and are well-positioned to substantially assist with its growth and success. Among other criteria, this person must also possess substantial ownership interest in the start-up entity created within the past five years in the U.S.

One benefit of the EIR program is that it allows spouses and unmarried minor children to accompany the entrepreneur with the filing of the Form I-131 (Application for Travel Document). Finally, employment authorization is available for that spouse upon parole into the U.S. and after filing the Form I-765 (Application for Employment Authorization). Please check USCIS’ website for the applicable criteria, documents, and fees on all these applications.

Options for Entrepreneurs

Contact us for any questions regarding how this alert may affect you as an entrepreneur or investor. You may also sign up for our Chugh, LLP newsletter pertaining to employment based immigration matters at www.old.chugh.com or contact us at info@chugh.com.

Resources

https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole

https://www.uscis.gov/news/news-releases/uscis-begin-accepting-applications-under-international-entrepreneur-rule

Nat'l Venture Capital Ass'n v. Duke, No. CV 17-1912 (JEB), 2017 WL 5990122 (D.D.C. Dec. 1, 2017)