The Department of Homeland Security (DHS) has proposed a rule to terminate the International Entrepreneur Program, which permits certain foreign entrepreneurs to be considered for parole to develop and build start-up businesses in the United States. The regulation DHS wants to end is known as the International Entrepreneur Rule (IE Final Rule).
The idea of helping international entrepreneurs began several years ago. In January 2017, the Obama administration published the IE Final Rule. It was supposed to take effect in July 2017. In July 2017, DHS published a final rule to delay the implementation date of the IE Final Rule to March 14, 2018, to give the Department time to draft a rescission of the IE Final Rule. However, in December 2017, a federal court vacated the delay rule, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE Final Rule.
DHS is now proposing to eliminate the IE Final Rule because the agency “believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs.”
DHS noted that by statute, it has discretionary authority to parole individuals into the United States temporarily, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit. After reviewing DHS parole programs in accordance with an executive order, “Border Security and Immigration Enforcement Improvements,” issued on January 25, 2017, DHS is proposing to remove regulations published as part of the IE Final Rule. DHS said it concluded that the IE Final Rule “created a complex and highly structured program that was best established by the legislative process rather than relying on an unorthodox use of the Secretary’s authority to ‘temporarily’ parole, in a categorical way, aliens based on ‘significant public benefit.’ ”
DHS also said that the Immigration and Nationality Act already provides for visa classifications that enable certain entrepreneurs to start businesses and work in the United States, such as the E-2 nonimmigrant classification and the EB-5 immigrant classification. DHS said it “is committed to reviewing all existing employment-based immigrant and nonimmigrant visa programs to ensure program integrity and protect the interests of U.S. investors and workers.”
The National Venture Capital Association (NVCA) issued a press release calling the move a “major mistake for U.S. job creation and innovation.” NVCA noted that the delay and announced intention to rescind the IE Final Rule “comes at a time of increased global competition for entrepreneurship. The U.S. share of global venture capital investment has dropped precipitously from 90% twenty years ago to 54% last year. Countries like Canada, France, Germany, and Singapore have put in place ‘startup visas’ to bring new companies to their shores. The world’s best immigrant entrepreneurs now have many choices on where to start a new enterprise.”