While attention has been paid to the bleak immigration landscape, there is a brighter spot.

The Entrepreneur Parole Program is a hopeful step in the right direction toward attracting the brightest and best entrepreneurs to our shores. At the same time it affords qualified investors a way of easing the immigration burdens on start-up companies in which foreign nationals play a key role.

While attention has been paid to the bleak immigration landscape, there is a brighter spot I want to consider—the recent promulgation by U.S. Citizenship & Immigration Services (“USCIS”) of a new regulation creating an Entrepreneur Parole Program [see 82 Federal Register p. 5286 (January 17, 2017)].

This program, scheduled to come on line in July 2017, purports to allow qualified entrepreneurs, who are developing businesses that would provide a “significant public benefit” to the U.S., to be admitted, under USCIS’s parole authority, to develop their enterprises for up to a maximum of ten years.

While there is a prospect that Congress could try to repeal the rule under the 1996 Congressional Review Act, I am hopeful that Congress will see the virtues of promoting the activities of foreign entrepreneurs in the U.S. whose contributions could end up promoting job growth and the advent of new, groundbreaking, technologies.

These are the six primary factors:

1. An Entrepreneur by any other Name

To qualify as an entrepreneur under the Entrepreneur Parole Program, a candidate needs to demonstrate a “substantial ownership interest” in a “start-up” enterprise.

This means that an entrepreneur must control initially at least a 10% stake in the start-up enterprise and be in the position to take a central and active role in its operations.

A start-up enterprise is defined as a “U.S. business entity” that has been formed within 5 years preceding adjudication of the application for entrepreneur parole, or formed within 5 years preceding the date a government award or grant is received in furtherance of the prospective venture.

2. Parole Qualifications

If the candidate is an “entrepreneur” who intends to develop a “start-up enterprise”, the next requirement is that:

• within 18 months prior to the filing of the request for parole application
• the enterprise has received at least $250,000 in investment funds from qualified investors,
• or at least $100,000 in government grants and awards
• or otherwise can show, through alternative evidence, “substantial potential for rapid growth and job creation.”

“Rapid growth and job creation” means generating over a 5-year time horizon at least $500,000 in revenue, showing, on average, 20% revenue growth annually, and the creation of at least 5 full time jobs available to U.S. citizens, permanent residents, and certain qualified non-immigrants.

As an aside, I found the provision regarding “alternative criteria” less than clear. My interpretation is one way of looking at it, but there are other ways, and further guidance from the authorities is likely forthcoming on this issue.

Finally, it is mandated that the start-up enterprise show that it has received, over the five-year initial parole term, at least $500,000 from qualified investors and/or in government awards and grants.

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