On August 24, 2016, the U.S. Citizenship and Immigration Services (USCIS) proposed a new rule that would benefit foreign entrepreneurs of startup companies that would provide significant public benefit to the United States through substantial and demonstrated potential for rapid business growth and job creation. The International Entrepreneur Rule will allow international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start and develop their businesses here in the United States.

Eligibility

Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

1. Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
2. Whose startup was formed in the United States within the past three years; and
3. Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
   • Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
   • Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
   • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

In addition, the proposed rule lists two (2) ancillary conditions for eligibility, such as:

• Applicants must maintain household income greater than 400 percent of the poverty line, and
• The qualifying start-up capital cannot come from family members (parents, spouse, brother, sister, son or daughter).

Validity

If the application for parole is granted, it would provide a temporary initial stay of up to 2 years (which may be extended by up to an additional 3 years) to facilitate the entrepreneur’s ability to oversee and grow the startup company in the United States.

Restrictions

An entrepreneur who is paroled into the United States under this proposed rule would be authorized for employment incident to his or her parole with the startup entity. The entrepreneur parolee’s employment authorization would be limited to the specific start-up entity listed on the Application for Entrepreneur Parole. This limitation is intended to keep the scope of employment authorization within the purposes for which parole was granted. As the purpose of this proposed rule is to encourage foreign entrepreneurs to develop and grow their start-up businesses in the United States—rather than obtain new sources of employment—DHS believes this limitation on employment authorization is a reasonable restriction.

No more than three entrepreneurs may receive parole with respect to any one qualifying company or entity.

Application Forms, Costs and Decision

• Entrepreneur applicant: Form I-941, Application For Entrepreneur Parole ($1,200) + Biometrics Fee ($85)
• Each Spouse and child(ren): Form I-131, Application For Travel Document ($360) + Biometrics Fee, if 14 years of age or over ($85)
• Spouse only (work authorization): Form I-751, Application For Employment Authorization ($380)

As noted above, an entrepreneur who is paroled into the United States under this proposed rule will be authorized for employment “incident” to his or her parole with the startup entity — this means that the entrepreneur will not receive (and does not need to apply for) an employment authorization document or EAD.

A denial of parole application under this proposed rule cannot be appealed. USCIS will not consider a motion to reopen or reconsider a denial of parole.

Renewal and Continuous Employment Authorization

To facilitate maintenance of continuous work authorization and parole, DHS is proposing that an entrepreneur parolee may file a request for re-parole beginning 90 days prior to the expiration date of his or her current period of parole.

DHS also proposes to automatically extend the employment authorization of those entrepreneur parolees whose parole has expired but who has filed a timely application for re-parole with the same start-up entity. DHS is proposing that this automatic employment authorization will extend for 240 days from the date the entrepreneur’s initial parole period expires, or until USCIS makes a decision on the re-parole request, whichever is sooner, when a request for re-parole was timely filed by the entrepreneur.

Nonimmigrants Currently in the United States

Entrepreneurs who are currently in the United States in other nonimmigrant visa classifications are eligible to apply for parole under this proposed rule. However, once the application for parole is approved, they will need to leave the country and request to be paroled into the United States at a port of entry, as parole will not involve any direct change from other nonimmigrant status.

On May 4, the U.S. Citizenship and Immigration Services (USCIS) published a proposal to increase its current fee schedule. The table below highlights the changes to some of the most common petitions/applications affected by this recent proposal.

Note that both the biometric services fee and premium processing fee (not listed) remain the same. Furthermore, USCIS proposes a fee of $750 for a child under 14 years of age when filing with a parent — a $115 increase from the current filing fee of $635. Other noteworthy increases include the I-129 fee (filed with all nonimmigrant visa petitions), which increases from $325 to $460.
 

The Department of Homeland Security (DHS) is amending its F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education.

Specifically, the final rule allows such F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (STEM OPT extension). This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students. The rule also increases oversight over STEM OPT extensions by, among other things, requiring the implementation of formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. As with the prior 17-month STEM OPT extension, the rule authorizes STEM OPT extensions only for students employed by employers who participate in E-Verify.

The rule also includes the “Cap-Gap” relief for any F-1 student with a timely filed H-1B petition and request for change of status. This rule is effective May 10, 2016. A copy of the DHS final rule is available below. Stay tuned for more details.

 
** This post has been updated to include a copy of the final rule published on March 11, 2016.
 

Travelers planning to visit the United States are already facing surprises based on the new restrictions of the Visa Waiver Program (VWP) that were implemented as part of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act.

Based on the new restrictions, individuals who have been present in Iraq, Syria, Iran, or Sudan (or other countries designated by DHS as supporting terrorism or “of concern”) at any time on or after March 1, 2011, are not eligible to participate in the VWP. The new law exempts those performing military service in the armed forces of a VWP country or those carrying out official duties in a full-time capacity in the employment of a VWP country government. U.S. officials have identified about 1,600 individuals who traveled to these four countries but for now, will not be revoking these ESTA clearances. The United States will wait until these individuals arrive at ports-of-entry to process them and will determine at that time, whether these individuals qualify for an exemption.

The new law also excludes from the VWP individuals who are nationals of Iraq, Syria, Iran, or Sudan. Nationality typically depends on the laws of the designated country, so it is important to note that an individual may be a national of a particular country, even if he or she has never resided in that country and/or does not have a passport issued by that country. For example, a UK citizen with a UK passport who was born in Iran, is now likely unable to use the Visa Waiver Program. In fact, on Tuesday, January 19, 2016, a BBC journalist with dual British-Iranian citizenship was prevented from boarding a plane traveling from London to New Jersey. U.S. officials have confirmed that it has identified about 16,000 individuals with ESTA clearances who have dual nationality. Those individuals will be sent emails revoking their ESTA clearance. Most came from the following countries: Germany, France, UK, Sweden, Australia.

In addition, individuals who are no longer eligible for the VWP will have the opportunity to apply for a waiver at a port-of-entry, but only if DHS finds that it would be in the law enforcement or national security interests of the United States.

Individuals impacted by these changes would now have to apply for a traditional B-1/B-2 visa at a U.S. embassy or consulate in their home country.

For more information, please see the U.S. Customs and Border Protection (CBP) Visa Waiver Program Improvement and Terrorist Travel Prevention Act Frequently Asked Questions.

E-3, H-1B1 and CW-1 Nonimmigrants are Now Eligible for “240-Day” Rule

On January 13, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it has amended its regulations to provide relief for nonimmigrants in H-1B1 (specialty occupations from Chile, Singapore), E-3 (specialty occupations from Australia) and CW-1 (transitional workers in the Commonwealth of the Northern Mariana Islands) visa classifications, who file an extension of status in a timely manner. This is great news!!

Current regulations provide most nonimmigrant visa classifications (H-1B, L-1, O-1, TN, etc.), with an automatic 240 days of continued work authorization when an extension petition is filed before the nonimmigrant visa expires. This means that as long as the extension with the same employer is “timely filed” and pending, the nonimmigrant employee may continue to work for his or her employer after the current status expires, for up to 240 days or the date of denial, whichever is earlier. Unfortunately, this “240-day” rule did not apply to H-1B1, E-3 and CW-1 categories until now. Before this amendment, extensions for nonimmigrants in these classifications had to be approved before the expiration date in order to continue working. This often created hardship for employers and foreign nationals as USCIS often takes 3-5 months to adjudicate extension petitions. In the past, employers had to take foreign nationals off payroll. Unfortunately, there is still no option to use the premium processing service in these categories.
 

New Law Increases H-1B and L-1 Petition Fees

On January 12, 2016, USCIS also announced that there will be an increase in filing fees for certain employers filing H-1B and L-1 visa petitions in accordance with the Consolidated Appropriation Act, 2016, signed by the President on December 18, 2015. Below is an outline of this new requirement.

• Type of petitioners: Employers who employ 50 or more employees in the United States and with more than 50% of those employees are in H-1B or L-1 nonimmigrant status
• Nonimmigrant Visa (NIV) classification: H-1B or L-1A or L-1B
• Type of petition: Initial petition by the employer (change of status, consular processing, and change of employer)
• Required fee: $4,000 for H-1B petitions and $4,500 for L-1 petitions
• When to submit: At the time of filing (For those cases filed, between December 18, 2015 and February 11, 2016, that do not include the required fees, USCIS will issue a Request for Evidencd (RFE) to determine whether the additional fee applies to the petition. USCIS advises that petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply.)
• Effective date: December 18, 2015 through September 30, 2025. (This new rule applies to petitions filed or postmarked on or after December 18, 2015.)

Visa Waiver Updates

In addition, the new law also includes provisions that add certain restrictions to the Visa Waiver Program (VWP). Among other things, the foreign traveler must:

• have an electronic passport as of April 1, 2016
• not have traveled to Iran, Iraq, Sudan or Syria or other other country designated to have been supporting acts of terrorism
• not be a National of Iran, Iraq, Sudan or Syria or any other country designated to have been supporting acts of terrorism (even if a National of another VWP country)

VWP travelers who have traveled to Iran, Iraq, Sudan or Syria or other countries designated to have supported acts of terrorism will have to apply for a traditional B-1/B-2 visitor visa at a U.S. embassy abroad.
 

EB-1 Outstanding Professors / Researchers Update

In the same January 15, 2016 revised regulation, employers filing Outstanding Professor or Researcher petitions in the EB-1 category may now submit “comparable evidence in petitions and are not limited to the specific criteria.

The U.S. Citizenship and Immigration Services (USCIS) announced today that beginning with the Visa Bulletin for November 2015, USCIS will make a determination each month on whether there are more immigrant visas available for the fiscal year than there are known applicants for such visas. If immigrant visas are available, applicants may use the “Dates for Filing Visa Applications” chart as the basis for filing their I-485 adjustment of status applications. Otherwise, the “Application Final Action Dates” chart will be used in determining when individuals may file their adjustment of status applications. USCIS will make such determination available to applicants every month within one week from the publication of the new Visa Bulletin by the State Department, through the new Visa Bulletin information web page.

This latest instruction is in contrast with USCIS’ original announcement on September 9, 2015, which revised the immigrant visa application procedures and instructed applicants to use the “Dates for Filing Visa Application” chart as a priority date reference when filing I-485 adjustment of status application.
 

On October 6, 2015, a Federal Court in Washington denied the emergency motion for Temporary Restraining Order (TRO) filed on September 28, 2015 in a class action lawsuit. The lawsuit came after the U.S. Department of State (DOS) published a revised Visa Bulletin for October 2015 a few days before October 1 — when the Visa Bulletin becomes effective.

The court rules:

When considering the balance of equities and the public interest in this matter, the Court finds Defendants’ arguments the more persuasive. Plaintiffs essentially reiterate their case, arguing that Defendants actions were abrupt and unlawful, that “the government cannot claim to suffer any hardship,” and that “the government’s actions in this case threaten to permanently undermine the regulated community’s ability to rely on the Visa Bulletin.” In Response, Defendants argue “[t]he public interest favors applying federal law correctly,” that “it is contrary to the public interest and the law to require an executive agency to act in a manner that exceeds its statutory authority,” and that “should a temporary restraining order be granted and should the Government then succeed in litigation, it would have to incur the substantial cost and burden returning applications.” Most persuasively, however, is Defendants’ argument that “it is in the public’s interest that the agency has the authority to update its guidance when necessary.” Id. Given the claim that the Revised Visa Bulletin corrected a statement contrary to statutory authority, the Court finds that the public interest lies in denying this Motion and that Plaintiffs fail to meet their burden on this element.

While the Court appreciates the confusion caused by the two Visa Bulletins published in September and the potentially wasted expenses Plaintiffs incurred as a result, because Plaintiffs fail to meet the critical elements for a temporary restraining order at this time, the Court cannot issue injunctive relief.

Accordingly, the Court hereby finds and ORDERS that Plaintiffs’ Motion for Temporary Restraining Order is DENIED.

On Friday, October 9, 2015, consular operations at all embassies and consulates will be closed to the public due to a planned consular systems upgrade. Application Service Centers (ASCs) connected to certain posts may also be affected by the systems upgrade. Individuals who have an appointment scheduled for that date will be contacted to reschedule. Instructions for emergency requests for appointment will be provided by individual posts. Please make sure to check individual post websites for additional information.