Gunster's immigration law practice

USCIS issued the subject final rule on January 17, 2017 which becomes effective July 17, 2017.

According to the Department of Homeland Security (DHS) news release, the rule is intended to improve the ability of certain promising startup founders to begin growing their companies within the United States and help improve our nation’s economy through increased capital spending, innovation and job creation.

Under this final rule, DHS may 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. Eligible entrepreneurs may be granted a stay of up to 30 months, with the possibility to extend the period by up to 30 additional months if they meet certain criteria, in the discretion of DHS. Eligibility may be extended to up to three entrepreneurs per startup entity, as well as spouses and children. Entrepreneurs granted stays will be eligible to work only for their startup business. Their spouses may apply for work authorization in the United States, but their children will not be eligible.

An applicant would need to demonstrate that he or she meets the following criteria to be considered under this rule [bracketed material is added from the Executive Summary of the Rule]:

  • The applicant possesses a substantial ownership interest in a startup entity [10% for a grant of initial parole] created within the past five years in the United States that has substantial potential for rapid growth and job creation.
  • The applicant has a central and active role in the startup entity such that the applicant is well-positioned to substantially assist with the growth and success of the business.
  • The applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the startup entity by:
    • Showing that the startup entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments [$250,000 or more from investors];
    • Showing that the startup 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 startup entities) from federal, state or local government entities that regularly provide such awards or grants to startup entities [$100,000 or more from government entities] for a grant of initial parole; or
    • Showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

View the official USCIS press release

View the Federal Register excerpt containing the final rule

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

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