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Parole for Entrepreneurs?

Sep 12, 2016

On August 26, U.S. Citizenship and Immigration Services (USCIS) proposed that certain international entrepreneurs be granted temporary permission--"parole"--to start or grow their businesses in the United States. Because statutory change to immigration law continues to stall out, USCIS has proposed a new way for investors and entrepreneurs to come to the United States.  

As of now, the law only provides a few options.  For some investors, an E-1 or E-2 visa may be an option depending on the country of nationality, the type of investment, the amount of ownership, and the nature of the business. However, the United States does not have trade treaties that allow for E-1 or E-2 visas with countries that have high level of interest in starting businesses in the US such as India or China. Some positions may qualify for an H-1B visa, but the regular exhaustion of the lottery makes those visas hard to come by. Pathways to permanent residence are also limited. Our statutory scheme is antiquated and does not contemplate the current trends and business models of most start-ups, especially those in tech fields.  

If put into place, the new regulations allow certain entrepreneurs to be paroled into the United States to pursue opportunities, but parole is a legal fiction that can create headaches for even experienced practitioners.  A person who is paroled into the United States is not admitted in the legal sense of the word, although she is physically present. That person is authorized to be here by the agency, but is not within a traditional visa status. For many, that authorization is sufficient or a few years of that authorization may open the possibility of other immigration options. 
While I applaud USCIS and the Obama administration for thinking outside the box,  I do wonder what challenges we will see to these regulations. Can USCIS create a formalized parole category / application process that functions as a visa class--a visa class not specified by statute?  Is this within the agency’s broad power?  Perhaps we would have known the answers a few months ago had our Supreme Court been able to resolve United States v. Texas dealing with deferred action for childhood arrivals and parents of US citizens.

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