On Friday, December 1, Federal Judge James E. Boasberg of the U.S. District Court ruled in favor of a lawsuit brought by the National Venture Capital Association (NVCA), entrepreneurs, and startup companies on September 19, 2017 against the U.S. Department of Homeland Security (DHS). The lawsuit challenged DHS’s delay of the International Entrepreneur Rule (IER) which was designed to allow foreign entrepreneurs to stay in the United States to develop and grow their businesses.
As way of background, DHS published a final rule (“The International Entrepreneur Rule”) on January 17, 2017, to improve the ability of certain promising start-up founders to begin growing their companies within the United States and help improve the economy through increased capital spending, innovation and job creation. DHS published this final rule just 3 days before the Trump administration took office. Under this final rule, DHS would use its “parole” 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 the potential for rapid business growth and job creation. Under the original final rule, eligibility may be extended to up to three entrepreneurs per start-up entity, as well as spouses and children. Entrepreneurs granted parole will be eligible to work only for their start-up business. Their spouses may apply for work authorization in the United States, but their minor children will not be eligible for work authorization.
The new rule was to become effective on July 17, 2017, but on July 11, 2017, DHS announced that it was delaying implementation of the rule until March 14, 2018 and providing the public with an opportunity to comment on the proposal to now rescind the rule.
On Friday, Judge Boasberg agreed with NVCA and the other plaintiffs, who argued DHS violated the Administrative Procedure Act because it did not solicit advance comment from the public on the delay. Based on Judge Boasberg’s ruling, DHS must now cease the delay and begin accepting entrepreneur parole applications.
The U.S. Citizenship and Immigration Services (USCIS) has yet to release any information about how to apply (e.g. what forms to use, filing fees and the required supporting documentation) and when it will accept applications.
