Update: International Entrepreneur Rule – Government’s delay struck down

On July 11, 2017, one week before the new International Entrepreneur Rule (IER), discussed here, was to take effect, the Administration issued a final rule delaying implementation of the IER (the “delay rule”), and requesting public comments after the fact.  The IER would have created a pathway for certain international entrepreneurs to apply for up to five years of temporary legal status (called “parole”) in the U.S. to launch their businesses, and potentially gain permanent residency in the meantime.

A lawsuit was filed by several international entrepreneurs and investors challenging the delay rule (National Venture Capital Association v. Duke). On December 1, 2017, the Federal District Court for the District of Columbia ruled for the plaintiffs, and vacated the delay rule. The Government requested a stay of the decision which was denied.

As a result, the IER, originally intended to take effect last July, is now in effect.   The government announced that it will comply with the Court’s order, but in that announcement it reiterated that it still intends to rescind the IER, and is at work on a proposed rule to do so.   The government nonetheless will have to accept notice and comment before publishing a final rule.

While in theory, the Court’s ruling means that international entrepreneurs who meet specified eligibility criteria can now apply for parole for an initial 30 months to launch their businesses, parole decisions are always discretionary.

Given the Administration’s clear hostility to the rule, it remains to be seen whether applications under the IER will be adjudicated fairly, or whether USCIS will receive signals to discretionarily deny them.   This would be short sighted, given the impressive track record of immigrant entrepreneurs in the U.S.,  who will take their drive, creativity, and economic contributions elsewhere if the U.S. chooses not to make room for them.

International entrepreneurs and their U.S. partners or investors should consult with experienced immigration attorneys for further information.