Department of Homeland Security Proposes to Eliminate International Entrepreneur Rule (IE Final Rule)

The Department of Homeland Security announced on May 25th that it was in the process of revoking the International Entrepreneur Rule (IE Final Rule), a program that allows foreign entrepreneurs to temporarily come to the United States in order to develop and grow start-up businesses.

In December 2017, a federal court ruled that USCIS was required to accept international entrepreneur parole applications that were consistent with the stipulations of the IE Final Rule. DHS has stated that it is proposing to eliminate the IE Final Rule on the grounds that the program “represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs”.

By law, DHS possesses the discretionary authority to parole individuals into the U.S. temporarily for humanitarian reasons or for public benefit. Upon a review of the parole programs in accordance with the Executive Order titled Border Security and Immigration Enforcement Improvements, DHS concluded that the IE Final Rule was better established and implemented by the legislative process rather than the use of the Secretary’s authority to parole aliens for “significant public benefit”.

Under the Immigration and Nationality Act, there are some visa categories that enable certain entrepreneurs to establish businesses and work in the US, such as the E-2 nonimmigrant and the EB-5 immigrant visas.  However, there are clear limitations to these visas, given that E-2s are only available to citizens of countries that have a qualifying treaty with the United States and the EB-5 normally requires a minimum investment threshold of $1,000,000 - which far exceeds the investment levels used by many start-up companies.

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