Immigrantly

Immigration thoughts from an Immigration Lawyer.

New Immigration Status for Entrepreneurs and Startup Founders: “Significant Public Benefit” Parole Program

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On 06/25/2015, the USCIS held a public engagement teleconference regarding its new program creating a parole status for inventors, researchers and founders of start-up enterprises. This program is proposed as part of President Obama’s executive actions on immigration announced on November 20, 2014. The rules of the program are not set yet, and the purpose of the teleconference was for the USCIS to receive comments from stakeholders so that they can create the detailed rules for this parole program.

Basics of the “Significant Public Benefit” Parole Program

This is a program designed for inventors, researchers and founders of start-up enterprises who may not yet qualify for a National Interest Waiver (NIW), but who meet the following criteria:

  • Have been awarded substantial U.S. investor financing; or
  • Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.

At this point, there is no details about what these two requirements mean (e.g. what is “substantial” financing; who qualifies as “U.S. investor”; how to show “promise of innovation and job creation” etc.), and not even details about how long this parole status would allow qualifying individuals to stay in the U.S. However, it seems that the USCIS is trying to find the best rules for this program.

Questions from the USCIS

The USCIS sent a list of questions to stakeholders before the teleconference. The main questions included:

  • How to identify a credible U.S. investor;
  • How much the qualifying investment amount should be; and
  • How many jobs the company should create to qualify for the program.

See the full list of questions for more details.

Comments from the Stakeholders

During the one and half hours of teleconference, there were a number of comments and questions made by the stakeholders. Some of them are listed below:

  • Will this program be applied to undocumented immigrants?
  • There should be a travel authorization for this program.
  • Will the spouse and children be allowed to work too?
  • The qualifying “investor” should include non-traditional investors, such as Kickstarter or other crowdfunding.
  • “Investors” should not be limited to U.S. investor, since a lot of companies have foreign funding.
  • The USCIS should take into consideration the location of the business and the industry of the business, since the amount of money required for success differs greatly.
  • How much should the foreign applicant own the business? Some said 50%, some said 15%.
  • The program should be designed with F1 students in mind, who don’t necessarily have funding from an investor, but have earned awards from their school projects which shows their skills and potentials.

My Concerns and Suggestions 

I have a lot of comments, questions and suggestions, but here I will share one of my concerns regarding the fundamental idea and structure of this parole program.

This program seems to be designed primarily for founders of a business, but not its employees. The program includes the language of “inventors” and “researchers,” but unless the definitions of these terms are broad, they won’t apply to most employees of a startup company. If the purpose of this program is to encourage and create more successful small businesses and to create jobs, the employees of a startup should also be taken into consideration. One of the biggest challenges for small businesses is to obtain skilled employees who will enable the company to grow and succeed.

For example, there are a number of Silicon Valley tech startups that are struggling to hire talented programmers and designers because there is a lack of supply in the U.S. (citizen or permanent resident) market. Even when they find a perfect candidate for their company, if that candidate is a foreigner, the visa options are often very limited, if not none. Another example comes from a non-tech business (an inquiry I received recently), where a U.S. citizen started a real estate agency targeting Japanese expatriates because he has lived in Japan before and knows exactly how to offer good services to those expatriates. In order to grow his business, he needed someone who understand Japanese language and culture, and has experiences in the real estate industry. He couldn’t find anyone in the U.S., but found an ideal candidate in Japan. However, as a startup company, there was no applicable visa for that candidate.

If the problem with the current immigration system is that it doesn’t offer visa status that allows startups to grow, and if the “Significant Public Benefit” Parole Program is created to solve that problem, then it should focus more on how to enable the company as a whole to grow, rather than how to let the founders, and only the founders, stay in the U.S. It won’t be a “public benefit” for the U.S. if this program only supports startups established by foreigners but not ones established by U.S. citizens.

Suggestions

I suggest that USCIS creates two kinds of parole. First is for founders, inventors and researchers, as it currently suggests. This parole should be given to the individuals and not tied to a company. The idea behind this is that this parole acts as a pre-NIW and the individuals themselves are determined to be so talented and motivated to be “significant public benefit” of the U.S. Once the parole is given for a certain period of time, the individuals should be allowed to explore their talent and opportunities, including closing and starting a new startup, working with other companies, etc. For purpose of fraud prevention, they should still meet the original requirements (and perhaps some additional requirements) at the time of renewal, assuming the parole status is renewable.

The second type of parole should be given to the employees of a startup company. In this case, the company will have some kind of authorization/certificate showing that it has been determined to be a company with “significant public benefit” to the U.S. With this authorization/certificate, the company will be able to employ foreign workers without too much restrictions within the authorized period. This is a similar idea to the L Blanket visa, where once the company is determined to be qualified, it can employ foreign workers with much easier process. In this case, the employees’ status is tied to the company and the company’s success. This will allow more flexibility and motivation in the company’s growth and success. As the company grows, the employee will be able to pursue other visa options or even a green card sponsorship.

Your Comments are Important!

The teleconference gave me a sense that the USCIS is sincerely seeking for cooperation from the stakeholders and want to set up the rules that will best match the needs of the community. So, I strongly encourage you to submit your comments, questions, and suggestions to the USCIS. You can email them directly at Public.Engagement@uscis.dhs.gov.

I would also very much appreciate your comments to my thoughts and suggestions, so that I can better voice our concerns as an immigration lawyer and an advocate. Thank you!

2 thoughts on “New Immigration Status for Entrepreneurs and Startup Founders: “Significant Public Benefit” Parole Program

  1. Doesn’t this program have to go before the Congress for approval?

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    • No, it doesn’t because it’s not creating a new visa category; it’s simply extending the application of an existing parole program, which is within the President’s executive power to do.

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