New Year, New Opportunities: Trends and Upcoming Developments in Immigration Law

2023 saw the rollout of a litany of administrative, regulatory, and executive updates and changes that touch virtually all aspects of the U.S. immigration system, with the impact of these changes expected to be felt in full force in 2024. Employers who engage in routine visa sponsorship, skilled immigrants with extensive experience in their respective fields, entrepreneurs, and investors all stand to benefit from many if not all of these changes and are well served by familiarizing themselves with these policy and regulatory changes, updated immigration trends, and the new opportunities they present. Continue reading “New Year, New Opportunities: Trends and Upcoming Developments in Immigration Law”

USCIS International Entrepreneur Parole Program Gets Some Guidelines

Written By: Alejandra Vargas, Esq. and Kristopher Peters, Esq.

Some exciting news for Entrepreneurs! As part of an ongoing slate of new agency guidance regarding various immigration programs and visas, USCIS has issued comprehensive guidance regarding the International Entrepreneur Parole Program (“IEPP”). The published guidance introduces criteria for entrepreneurs who have a central and active role in a start-up U.S. company and who are seeking significant public benefit parole. The revival of the IEPP and corresponding agency guidance represents part of a series of ongoing efforts by the Biden Administration to increase and enhance entrepreneurship, innovation, and job creation in the United States.

What is the IEPP?  The IEPP was first introduced under the Obama Administration in 2017 as an additional avenue to facilitate the ability of startup founders to begin growing their companies within the United States, contingent on obtaining significant financing from U.S. investors. The stated goal of the IEPP when first announced was to “identify on a case-by-case basis entrepreneurs who would provide significant public benefit, based on factors including the entrepreneur’s ownership stake and leadership role; the growth potential of the startup; competitive research grants from federal, state, and local government agencies; and investment by qualified American investors.”

Under the program, entrepreneurs who own at least 10 percent of a startup and attract at least $250,000 in financing from U.S. investors can remain in the United States for initial period of up to 30 months, with the ability to request one additional period of re-parole of up to 30 months from the date of the expiration of the initial parole period, in the agency’s discretion.

Unfortunately, although the final rule creating the IEPP was published in January 2017, the program was suspended under the Trump Administration. The Biden Administration later resurrected the rule in May 2021, but until now comprehensive guidance regarding the actual criteria for consideration and selection under the IEPP did not exist.

IEPP Criteria for Consideration under new USCIS Guidance: Under the new USCIS Guidance, the agency is updating Volume 3, Part G of the USCIS Policy Manual to describe the eligibility criteria for selection under the IEPP program that was created under the initial IE final rule in January 2017. This includes comprehensive guidance on the criteria for consideration and related definitions for the applicant, the start-up entity, qualified investment grant, or award, as well as relevant evidence that may be submitted.

To qualify for selection under the IEPP, an applicant must satisfy the following criteria:

  • The applicant must demonstrate that a grant of parole will provide a significant public benefit to the United States based on the applicant’s entrepreneurial role.
  • The applicant must have substantial ownership in the startup entity (defined to mean at least a 10% ownership interest in the start-up entity).
  • The applicant must not be primarily engaged in the offer, purchase, sale or trading of securities, futures contracts, derivatives, or similar instruments.
  • The applicant must demonstrate that the proposed startup entity:
    • Has substantial potential for rapid growth and job creation
    • Was formed within the five (5) years immediately preceding the date of initial parole application; and
    • Has been lawfully doing business during any period of operation since the date of formation.
  • The applicant must obtain at least $250,000 in U.S. investment, if the application was filed before October 1, 2021, or $264,167 if the application is filed on or after October 1, 2021.
  • The financing must be good faith investment in the form of lawfully derived capital and specifically excludes investment from the entrepreneur themselves, close family and closely-held corporations.
  • The investment must come from a “qualified investor”, which is defined as a “U.S. citizen or lawful permanent resident (LPR) of the United States”, or a U.S.-based legal entity that is majority owned and controlled, directly and indirectly, by U.S. citizens or LPRs.

If the initial application is approved, the entrepreneur may be granted parole for both themselves and two other entrepreneurs (total of three entrepreneurs per start-up entity) for an initial period of up to 30 months, with the ability to submit a one-time request for re-parole for up to an additional 30 months from the date of expiration of the initial parole.

Other Highlights Under the New USCIS Guidance : The updated Guidance also addresses the process for the agency to adjudicate IEPP applications, how the agency evaluates whether the application will provide significant public benefit to the U.S., the conditions on parole and basis for termination, and the application process for the entrepreneur’s spouse. This includes detailing how the applicant’s spouse (but not children) may apply for work authorization after being paroled into the United States.

Additionally, the Guidance lays out the criteria for obtaining an additional parole period, including that the entrepreneur demonstrates that the re-parole will continue to provide a significant public benefit to the United States and either: (1) that the entity has received at least $528,293 in qualifying investments, (2) that the entity has created at least 5 qualified jobs during the initial parole period, or (3) that the entity has reached at least $528,293 in annual revenue in the United States and averaged 20% in annual revenue growth throughout the initial parole period.

The revival of the IEPP program and updated Guidance represents an additional avenue by which entrepreneurs can invest, live and work in the United States. This is in addition to, or alongside, other potential options including E visas (for nationals of qualifying treaty countries), O-1 visas (for individuals with an accomplished portfolio in their respective field), and others.

Please contact a member of our Immigration Group for more information about either potential eligibility for parole under the IEPP or other visa options that may be available to you.

 

 

H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration

A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation”  was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations.  The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”

PERM Gets Rough in an Uncertain Job Market

Employers who may be trying to proceed with PERM applications for foreign national workers are in an uphill battle. With layoffs, furloughs and unemployment at all time highs, the Department of Labor is on high alert for unsuspecting PERM employers who are trying to do the right thing under difficult circumstances.

Employers who have H-1B or other workers with limited time on their nonimmigrant status, don’t have the luxury of waiting until the job market improves to begin PERM applications for their employees. For H-1B or L-1B workers in their final year or two of nonimmigrant visa eligibility, PERM is a necessity or they will have to return to their home countries. Continue reading “PERM Gets Rough in an Uncertain Job Market”

USCIS Issues Final Guidance on H-1B Amendments under Matter of Simeio

U.S. Citizenship and Immigration Services (USCIS) has released its final guidance on when to file an amended or new H-1B petition after the Matter of Simeio Solutions, LLC decision.

Change in CIS Policy on worksite/location changes: On April 9, 2015, the USCIS’ Administrative Appeals Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, ruling that when an H-1B employee changes work site locations, it is considered a material change that may require the filing of an amended or new H-1B petition with USCIS.

Previous USCIS Guidance:  Under the previous USCIS guidance, if a new Labor Condition Application (LCA) was filed with the U.S. Department of Labor (DOL) prior to the work site location change, no amended or new H-1B petition was required to be filed with USCIS.

New USCIS Guidance: Under the new USCIS Guidance, if an H-1B employee is changing work site locations and the new work site location is not within the same Metropolitan Statistical Area (MSA) as the current worksite location, then an amended or new H-1B petition must be filed with USCIS.

If the worksite change is within the same MSA, no amended or new H-1B petition is required; however, copies of the original certified LCA listing the current work site location will need to be posted at the new work site location prior to the H-1B employee beginning employment at the new location.  After the requisite posting period, the posted original certified LCA copies must be placed in the Public Access File notated with the dates and places of posting.

Compliance:  If an employer complied with the pre-Simeio decision USCIS Guidance, by completing a new LCA before the worksite change, and the H-1B employee work site changed occurred on or before April 9, 2015, USCIS will not pursue any new adverse actions against the employer after July 21, 2015 that are based solely upon a failure to file an amended or new H-1B petition to address the work site location change. USCIS will however, preserve the right to pursue any adverse actions (related to work site location changes) which have commenced or been completed prior to July 21, 2015, and will also still continue to pursue adverse actions for other violations.

However,  USCIS provides a safe harbor, if an employer files amended or new H-1B petitions on or before January 15, 2016 to address prior work site changes for H-1B employees (including cases that followed the pre-Simeio decision USCIS Guidance for work site location changes prior to April 9, 2015, with the filing of new LCAs listing the new work site location).   USCIS will consider those filings timely, and not subject to adverse action by USCIS for failure to file an amended or new H-1B petition to address the work site location change.

 

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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