Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick gives you the most recent updates in the world of immigration including important information about the continuation of the International Entrepreneur Parole Program, the Department of Homeland Security’s recent decision to withdraw a biometrics rule that would have required biometrics to be taken for every applicant, the current status of interview waivers being granted during the COVID-19 pandemic, and finally new policy guidance issued by USCIS that provides deference to previous decisions for those filing extension requests with the agency.
Want to know more? Keep on watching.
The Continuation of the International Entrepreneur Parole Program
Today, May 10, 2021, the United States Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) will be withdrawing a notice of proposed rulemaking first initiated under the Trump administration, which sought to terminate the International Entrepreneur Parole Program, a program first proposed by President Obama to facilitate the immigration of foreign entrepreneurs to the United States.
The proposed rule, “Removal of International Entrepreneur Parole Program,” was first issued by the Trump administration on May 29, 2018, shortly after President Trump signed Executive Order 13767 “Border Security and Immigration Enforcement Improvements,” into law. The proposed rule was masterminded by the Trump administration to ultimately delay the planned implementation of the program on July 17, 2017, with the goal of eventually dismantling it altogether.
To hinder the implementation of the program, with the passage of Executive Order 13767, former President Trump narrowed the pool of applicants who could become eligible for “parole,” and directed federal agencies to “ensure that parole authority under section 212(d)(5) of the INA is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances when an individual demonstrates urgent humanitarian reasons, or a significant public benefit derived from such parole.”
Trump’s efforts to rescind the program were ultimately unsuccessful, with the proposed rule remaining in limbo since his departure from the White House.
The Biden administration has now made clear that the International Entrepreneur Parole Program (IEP) is here to stay. In a statement released by USCIS, the agency has said that it will no longer pursue removal of the program and that the IEP, “will remain a viable program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States. The program will help to strengthen and grow our nation’s economy through increased capital spending, innovation, and job creation.”
The administration’s decision to continue the IEP represents the President’s renewed commitment to restore faith in our legal immigration system and support the immigration of foreign entrepreneurs.
What is the International Entrepreneur Parole Program?
The International Entrepreneur Parole Program grants DHS the 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 their business venture and that they merit a favorable exercise of discretion.
Under this final rule, entrepreneurs granted parole will be eligible to live and work in the United States only for their start-up business. Parole under the program may be granted for up to three entrepreneurs per start-up entity.
How long can entrepreneurs be paroled into the US?
Approved entrepreneurs are paroled into the United States for an initial period of up to 30 months, with authorization to work for the start-up entity only. Qualifying dependents receive parole for the same period as the principal, and spouses are eligible to apply for employment authorization.
An additional 30 months of parole may be available if the entrepreneur demonstrates that:
- The business continues to operate;
- The entrepreneur retains at least a five percent ownership interest and continues to play a central role in the business; and
- The business has:
- Created at least five qualifying jobs;
- Received at least $500,000 in qualifying investments, government grants, or awards, or a combination thereof; or
- Generated at least $500,000 in U.S. revenue and averaged 20 percent annual growth during the initial parole period.
What are the Eligibility Requirements for IEP
Entrepreneurs applying for parole under this rule must demonstrate that they:
- Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
- Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
- Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
- The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
- The start-up 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 start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
- They partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
- Otherwise merit a favorable exercise of discretion.
We applaud these efforts by USCIS and the Biden administration to facilitate the immigration of foreign-born entrepreneurs who wish to start their new businesses in the United States. This will be a great option for those who wish to live and work in the United States temporarily, as well as those who may not qualify for the E-2 Treaty Investor Visa.
DHS Withdraws Proposed Rule Requiring Biometrics
On May 7, 2021, USCIS similarly announced its withdrawal of the proposed rule “Collection and Use of Biometrics by USCIS” published in the Federal Register on September 11, 2020. This proposed rule would have created barriers in the immigration process by requiring biometrics for every applicant, petitioner, sponsor, beneficiary, or other individual filing an immigration or naturalization request, and would have expanded department authorities and requirements for collecting biometrics by removing age restrictions and adding unnecessary requirements such as DNA test results.
The decision to withdraw this proposed rule was made in accordance with Executive Order 14012 which seeks to reduce barriers and undue burdens in the immigration system.
USCIS will continue to require submission of biometrics as appropriate but will not expand biometrics requirements widely.
This is great news because it will help stabilize current delays being faced by USCIS. Due to social distancing and safety protocols, USCIS has been limiting biometrics appointments to ensure the health and safety of applicants and personnel. The withdrawal of this rule will prevent an undue burden on the system and the more efficient scheduling of biometrics appointments.
What is happening now with Interview Waivers?
There are certain instances in which USCIS may in their direction find that it is unnecessary to interview certain adjustment of status applicants. Such a determination is made on a case-by-case basis. When determining whether to waive an interview, an officer considers all relevant evidence in the applicant’s record.
The categories of cases where officers may decide to waive an interview are limited. In our office, we have seen in-person interviews waived increasingly for employment-based categories of immigrants in particular (EB-2, EB-3).
On the family-sponsorship front, we have also seen interviews being waived for adjustment of status cases involving long term marriage, and AOS cases filed by K-1 visa holders.
USCIS Updates Policy Guidance on Giving Deference to Prior Decisions
Recently, USCIS made an interesting update to its policy guidance in the USCIS Policy Manual and is now instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts.
The agency has said that with this update, USCIS is reverting to prior long-standing guidance first issued in 2004, which directed officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application. At the start of the Trump administration, USCIS abandoned this guidance altogether.
This new decision removes barriers to immigration and will streamline the adjudication of immigration benefits, giving deference to prior approvals, in extension requests involving the same parties. This will help ensure extension requests have a greater likelihood of success and will move more quickly through the pipeline.
Want to know more? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
- USCIS Announcement International Entrepreneur Parole Program
- USCIS webpage International Entrepreneur Parole Program
- USCIS Withdraws Proposed Biometrics Rule in Federal Register
- USCIS Policy Manual Deference for Extensions
- COVID-19 Presidential Proclamations
- ImmigrationU Membership
- Success stories
- Youtube channel
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