The recent announcement by the Biden Administration of the reinstatement of the International Entrepreneur Parole Rule is welcome news to U.S. Immigration. There are many times an F-1 visa holder gets involved with a start-up on his or her OPT, or wants to pursue an entrepreneurial venture post-graduation, but the current U.S. immigration laws limit the ways in which this can happen lawfully. This Rule opens the door to a pathway for those burgeoning entrepreneurs to remain in, or come to, the United States and contribute their talent, skills and innovations to the prosperity of the country.
Often times, those on student visas will work under OPT or STEM OPT to get on-the-job training relative to their field of study at university. By the time these students graduate, they have spent anywhere from four to ten or more years in the United States pursuing their education and career path. Some go on to get Graduate Degrees and Doctorates. During these educational experiences, it is natural that some percentage of these students will have entrepreneurial aspirations. The natural progression is a desire to stay in the United States to pursue these ventures.
Unfortunately, immigration laws make this a challenge.
H-1B visas can be an option for even a small start-up, but require being selected in the lottery for a visa number. These visa numbers are highly sought after and there is no guarantee of being selected. If so lucky to be selected, the rigid requirements for both employer and employee under an H-1B status make it difficult for a start-up company where the H-1B recipient is also the owner of the business. This issue can be overcome with U.S. business partners or if the business is otherwise operating in a manner which meets H-1B requirements. The other issue that can be present is the ability to pay the minimum prevailing wage for the position in which the foreign national will work. Depending on the business, funding, investors, and a number of other factors, the business may not be in a position to pay a "prevailing wage" as a start-up.
O-1 visas can be useful in this scenario where the business has a board or multiple owners to act in the "sponsor" signatory role and to show there is supervision of the foreign national within the organization. Aside from that, O-1's have a high bar to meet the "extraordinary" standard to be approved. While some students coming out of post-grad work, or in certain cases, even undergrads, can qualify for an O-1 visa, there is only a select group of foreign nationals that will meet the criteria. Most need more time to grow in their careers.
E-2 visas can work if the foreign national has "substantial funding" to put at risk into an enterprise in the United States. "Substantial" is subjective and no set number, but still requires a higher amount of money than a lot of just-graduating students have. This also requires the nonimmigrants own funds be at risk. If the start-up receives venture capital funding, these fund would not be figured into the "substantial funding" at risk because it is someone else's money. If the funding is not an issue, an E-2 visa is only open to those who come from an E-2 Treaty Country. This avenue closes for many for this reason alone.
Another challenge is where the entrepreneur is not a student, does not possess a U.S. university degree, and has no desire to get such an education. While O-1s and E-2s do not have a degree requirement, H-1Bs do.
The International Entrepreneur Parole Rule can be a solution to the challenges above. If qualified, a foreign national entrepreneur may be granted a period of stay, on a case-by-case basis, to work at their start-up business in the United States where their stay in the United States would provide "a significant public benefit through their business venture."
This is not a visa. This is "parole" which is permission to enter the United States for a designated period of time for a designated purpose.
This option requires a noncitizen to leave the United States to visit a U.S. Consulate, obtain a boarding foil, and then appear at a port of entry for the final determination to grant entry
Entrepreneur applying must show substantial ownership interest in a start-up entity
Start-up entity must have been created within the past five years
Must have substantial potential for rapid growth and job creation
Must have a substantial, central role to assist with the growth and success of the business
Merit a favorable exercise of discretion
Entity is the recipient of significant capital investment from a U.S. investor with track record of successful investments
Entity is recipient of significant awards or grants for economic development, research and development, or job creation, or other types of grants or awards typically given to start-ups from federal, state or local governments or
Entity partially meets either or both of the above two and can provide additional reliable and compelling evidence of the entity's potential for growth and job creation.
To apply, you will need to complete USCIS Form I-941, and submit with the required evidence and filing fee. The filing fee is $1200 plus a biometric fee of $85. It is highly recommended you work with an attorney if you are interested in applying for this option. The requirements have very specific legal definitions, and an experienced business immigration attorney can help put together the best evidence to give you the highest likelihood of approval on your first submission. This can actually save money in the long run from needed to re-file with another filing fee or to address issues which may be avoided the first time around.
As always, qualifications for an immigration visa of any type require a thorough review of each foreign national's individual circumstances to determine the best option. What works for your friend who graduated with the same degree and did the same OPT work may not work for you depending on a number of factors. It is important to review your options with an experienced immigration attorney.
If you want to see whether this option is right for you, schedule a consultation with us to see If it is the right fit.
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