DHS Proposed Rule to Provide Parole to Entrepreneurs

The Department of Homeland Security (DHS) has issued a proposed regulation to increase entrepreneurship, innovation, and job creation in the United States. The proposed rule would allow the use of parole on a case-by-case basis for entrepreneurs of start-up companies whose entry into the United States would provide a significant public benefit through the potential for rapid business growth and job creation. Favorable factors would include the receipt of significant capital investment from U.S. investors with established records of successful investments of at least $345,000, or obtaining significant awards or grants of $100,000 or more from certain Federal, State or local government agencies. If the entrepreneur lacks government financing or capital investment from US investors, he or she could provide other evidence of their start-up company’s significant potential for rapid growth and job creation. The applicant would have to show that he or she has a substantial ownership interest in the business of at least 15%, has the skills, knowledge and experience to run a business, and would substantially further the company’s ability to do research and development, or to conduct and grow the business in the U.S. The company must have been newly formed within three years prior to the application for parole. The grant of parole provides the applicant with the opportunity to oversee and grow the start-up entity:

“DHS believes that this proposal would encourage foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States, which are expected to facilitate research and development in the country, create jobs for U.S. workers, and otherwise benefit the U.S. economy through increased business activity, innovation and dynamism.”

This parole to entrepreneurs would provide a temporary stay of up to two years, which could be extended for another three years. For an extension, the entrepreneur would have to show substantial increases in capital investment, revenue, or job creation by their company. It is not clear whether people who have been living in the U.S. out-of-status would be eligible.

Please note, this is only a proposed rule, and is not yet in effect. Thus, no one can currently apply for parole for entrepreneurs. The Obama administration hopes to finalize the rule before the end of 2016.

The September 2016 Visa Bulletin Employment-Based Categories

Hopefully, all are enjoying the last month of summer and not worrying too much about the advancement of the priority dates! For those of you who will be dismayed about the state of the priority dates in the State Department’s Visa Bulletin for September 2016, take heart. September 30th is the last day of the fiscal year, and new visa numbers will become available on October 1st, the first day of the government’s fiscal year. Mexico’s EB-4 and India’s EB-4 categories will probably become current again in October.  However, for El Salvador, Guatemala and Honduras, it is likely that a cut-off date in 2015 will be established for EB-4 starting in October, but is likely to move forward very slowly during the next fiscal year.

The final action date for the EB-2 worldwide category remains backlogged to February 1st, 2014, more than two and a half years behind. While the State Department allows filing of EB-2 immigrant visa petitions up to the current date, so even if your priority date is behind you can initiate immigrant visa processing, USCIS does not allow this.  Thus, those adjusting status in the US are still backlogged to February 1, 2014 and may not file unless their priority dates are current.

For China, EB-1, EB-2 and EB-3 are all backlogged to January 1, 2010, more than six and a half years behind. For India, EB-1 is backlogged to January 1, 2010 as well, but EB-2, EB-3 and Other Workers are backlogged to February 2005, more than 11 and a half years away.  The Philippines is current for EB-1, EB-2 is at February 1, 2014, the same as the worldwide category, with more than a two and a half year wait.  EB-3 and Other Workers for the Philippines are at July 1, 2010, more than six years wait.

El Salvador, Guatemala and Honduras’ employment-based categories, with the exception of EB-2 are also behind, but EB-3 and Other Workers as a practical matter are doing fine at May 1, 2016.  However, the EB-4 and Religious Workers categories are at January 1, 2010, more than a six and a half year wait. The January 1, 2010 cut-off date imposed earlier this year is mostly due to high demand  for Special Immigrant Juvenile visas.

Expanded Provisional Unlawful Presence Waiver Will Help Many Undocumented People Who Have Approved Immigration Petitions

On July 29, 2016, Department of Homeland Security (DHS) published the final rule expanding the provisional unlawful presence waiver to all who are eligible for a waiver of the unlawful presence grounds of inadmissibility. Now, beneficiaries of any type of immigrant visa petition, including all the family preference categories, any I-140 whether based on a PERM labor certification or not, as well as winners of the Diversity Visa lottery, will be able to file an I-601A provisional unlawful presence waiver, as long as they have a U.S. citizen or permanent resident parent or spouse who would suffer extreme hardship should they not be allowed to live in the U.S. Those who have only US citizen children will not be able to qualify.

Up to now, only people who were the spouse, parent, or child of a U.S. citizen, with no other ground of inadmissibility were able to apply for provisional unlawful presence waivers. The prior rule prevented many people, including those whose close relatives were permanent residents and not U.S. citizens, and those with a criminal record or disease of public health significance, from being eligible. Now, even if you have an arrest record or some other potential ground of inadmissibility, you may apply for the provisional unlawful presence waiver. Of course, you still must prove eligibility for whatever other waiver you may need. It also eliminates the requirement that the person must not have been scheduled by Dept of State for a visa interview.

People with removal, deportation and exclusion orders will also be eligible for a waiver, as long as they already have an approved I-212, application for permission to reapply for admission into the U.S. They must first obtain a waiver of the bars to re-entry of their prior removal or deportation order.  However, individuals outside the U.S. will not be eligible for the expanded provisional unlawful presence waiver.

This will benefit many people in the U.S. who have approved relative or other immigration petitions who were not eligible under the prior provisional unlawful presence waiver.