The Department of Homeland Security (DHS) recently released a memo regarding the delay of the effective date of the International Entrepreneur Rule, which was scheduled to go into effect on July 17, 2017.
According to the memo, the new effective date has now been pushed to March 14, 2018, to provide an opportunity for notice and comment rulemaking to obtain comments from the public regarding a proposal to rescind the rule pursuant to President Trump's Executive Order 13767, Border Security and Immigration Enforcement Improvements.
What is the notice and comment rulemaking?
Notice and comment rulemaking is how government agencies create or promulgate regulations. It is a common procedure under which a proposed rule is published in the Federal Register and is open to comment by the general public.
Once the comment period ends, DHS will review the public comments received and may revise the rule accordingly. DHS will then submit the final rule to the Office of Information and Regulatory Affairs (OIRA) for review. The final rule will then be published after the OIRA review. Once the final rule has been published, an agency usually must wait at least 30 days before implementing it.
What is the International Entrepreneur Rule?
The International Entrepreneur Rule, commonly known as the "startup visa," allows DHS to use its "parole" authority to grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation.
If granted, parole would provide a temporary initial stay of up to 30 months (which may be extended by up to an additional 30 months) to facilitate the applicant's ability to oversee and grow his or her start-up entity in the United States. Parole may be granted to the applicant's spouse and children. Entrepreneurs granted parole will be eligible to work only for their start-up business. Spouses may apply for work authorization in the United States, but children will not be eligible.
In order to qualify, the applicant must meet the following criteria:
- Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
- The applicant must have a central and active role in the start-up entity that the applicant is well-positioned to substantially assist with the growth and success of the business.
- Be able to prove that the applicant's stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by demonstrating the following:
- The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
- The start-up entity has received significant awards or grants for economic development, research, and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state or local government entities that regularly provide such awards or grants to start-up entities; or
- Showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
The agency will begin accepting comments regarding the rule for 30 days beginning July 11, 2017. Comments may be submitted online via the Federal eRulemaking Portal or by mail to Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, UCSIS, DHS, 20 Massachusetts Avenue, NW, Washington, DC 20529.
If you are an entrepreneur affected by this development and would like assistance on the next steps, please contact us. We can help.
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