U.S. Alert – DHS Delays Effective Date of International Entrepreneur Final Rule, Says Rescission of Rule is “Highly Likely”

The Department of Homeland Security (DHS) is temporarily delaying the effective date of U.S. Citizenship and Immigration Services’ (USCIS) international entrepreneur final rule1 from July 17, 2017 to March 14, 2018, with one exception discussed below. The delay will give DHS an opportunity to obtain comments from the public regarding an upcoming proposal to rescind the rule pursuant to Executive Order 2 on Border Security and Immigration Enforcement Improvements. DHS opines that rescission of the international entrepreneur final rule is “highly likely.”

In the summer of 2016, DHS published a proposed rule that would allow certain international entrepreneurs to be considered for parole.3 In early 2017, the Department published the international entrepreneur final rule amending DHS regulations to include criteria that would guide the implementation of the Secretary of Homeland Security’s discretionary case-by-case parole authority as applied to international entrepreneurs who can demonstrate that their parole into the U.S. under INA § 212(d)(5) would provide a significant public benefit to the United States. Such potential would be indicated by, among other things, the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain federal, state, or local government entities. The international entrepreneur final rule established an initial parole stay period of up to 30 months (which could be extended by up to an additional 30 months) to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the U.S.

Shortly after taking office, President Donald Trump issued an Executive Order prescribing improvements to border security and immigration enforcement. The Executive Order requires the Secretary of Homeland Security to “take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

After reviewing the Executive Order, DHS has decided to delay the effective date of the international entrepreneur final rule to March 14, 2018. In addition, DHS intends to issue a notice of proposed rulemaking soliciting public comments on a proposal to rescind the international entrepreneur final rule. The delayed effective date will provide an opportunity for notice and comment rulemaking to take place.