New Regulations Open Doors to Foreign Start-Ups, Bypass Visa Application Process

“The problem with the French is that they don’t have a word for entrepreneur.” While certain U.S. president may or may not have said those words about the French, it is quite clear that the U.S. immigration regulations were missing, for a long time, a word or, rather a visa category, for entrepreneurs engaged in US start-ups. New Regulations published by the US Department of Homeland Security (“DHS”) on January 17, 2017 attempt to rectify this problem and create an entirely new way for foreign entrepreneurs engaged in start-ups to gain legal entry into the United States. The effective date for filing applications under this new program is set for July 17, 2017.

Background:

In the past, foreign entrepreneurs were able to use various visa/green card categories to gain residency in the United States, such as EB-5 (green cards through $1 million investments), EB-1 (green cards for multinational managers or executives), L-1 (temporary work visas for multinational managers or executives), O-1 (temporary visas for individuals possessing extraordinary ability in business), E-1/E-2 (temporary visas for treaty traders and investors), and others, each with its own set of onerous documentary requirements. These visa categories, except for E-1/E-2 visa applications, require both the US Citizenship & Immigration Service and the US Consular Offices to grant approvals. None of the above-mentioned categories was particularly well-suited for start-ups, either due to the minimum required investment amount (EB-5), requisite overseas corporate structure (L-1 and EB-1), record of extraordinary success in business (O-1), or existence of a treaty between the United States and applicant’s country and minimum investment amount (E-1/E-2). While these visa categories were created by law or treaty, the US Citizenship & Immigration Service (“USCIS”) has always retained the ability to allow entry or “parole” into the United States individuals who otherwise did not qualify for a temporary visa or a green card of any kind. On January 17, 2017, USCIS published criteria which it will use to determine eligibility of foreign entrepreneurs engaged in start-ups in the United States for such “parole.”

Who is Eligible?

Generally, foreign entrepreneurs who seek to operate and grow their stat-ups in the United States will be eligible to apply for “International Entrepreneur Parole” starting on July 17, 2017. To be considered for such a parole, applicants will be required to show that:

1. They recently formed a new (created within the 5 years prior to application) entity in the United States that has lawfully done business in the United States.
2. The newly created business has substantial potential for rapid growth. The applicant can show entity’s potential for rapid growth and job creation by:
a. Showing substantial investment (at least $250,000) from qualified US investors with established records of successful investments, such as venture capital firms, angel investors, or start-up accelerators); or
b. Monetary awards or grants totaling $100,000 or more from government entities that typically provide funding to US businesses for economic, R&D, or job creation purposes; or
c. Additional reliable and compelling evidence that the business would provide significant public benefit to the US.
3. The applicant is an entrepreneur (at least 10% owner of the business) who is well-positioned to advance the entity’s business (has active and central role in the operations and requisite skills, knowledge and experience).
Up to three (3) entrepreneurs from the same qualifying entity may receive parole under this program. Family members, including spouses and minor children will be eligible to receive parole along with the entrepreneur applicant.

How long can entrepreneurs stay in the US?

Parole can be granted for up to thirty (30) months (2.5 years) and extended for an additional thirty (30) months (2.5 years), provided the entrepreneur remains at least a 5 percent owner of the entity and the start-up entity continues to operate and meets certain additional criteria ($500,000 in revenue after 30 months of operation with annual revenue growth of at least 20 percent) and job creation (at least 5 full-time jobs for US workers during the initial thirty (30) months period), among others.
What is the process?
Entrepreneurs will be required to file an application with USCIS and pay an application fee. Recipients of Entrepreneur Parole will not be required to apply for a visa at a US Embassy or Consulate and will be able to travel to the United States without a visa.