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The Department of Homeland Security, through its component agency, U.S. Citizenship and Immigration Services (USCIS), has issued a proposed regulation to allow a qualified foreign citizen to gain entry and be employed in the United States if he or she will engage in activities that are likely to “increase and enhance entrepreneurship, innovation, and job creation in the United States” with a “start-up” entity. The USCIS proposed regulation would not change any other means of gaining work permission under the existing employment-based visa categories, e.g., the EB-5 immigrant investment program, immigrant visa classifications based upon, or exempt from, PERM labor certification, or through family-based immigration avenues.
Under the Immigration and Nationality Act, parole (an immigration “term of art” having nothing necessarily to do with the criminal laws) is a discretionary grant of permission to enter the U.S. under narrowly prescribed terms. Parole is not a formal “admission” to the country but a specially permitted “entry.” Unlike a green card or work visa — both of which are considered a legal “status” in the United States — parole can be automatically revoked by immigration officials without mandatory notice to the parolee. USCIS proposes that once the application for entrepreneurial parole is approved, the applicant and family members must leave the U.S. in order to be granted parole; they may not change to a nonimmigrant status within the United States.
USCIS proposes an initial two-year grant of parole to a qualifying “International Entrepreneur,” with one additional three-year renewal allowed. Under the proposal, the entrepreneurial parolee may work only in a start-up entity formed within the last three years in which s/he (a) will play a “central role in the operations and future growth of the entity,” and (b) owns at least a 15 percent interest. USCIS also proposes that the parolee’s spouse and children may be given parole entry, and that the spouse can be granted open-market employment authorization. The entrepreneurial parolee, however, may only be employed by the USCIS-approved start-up entity. USCIS also proposes to amend its Form I-9 (Employment Eligibility Verification) to allow a start-up entity to accept an original foreign passport and Form I-94, issued by U.S. Customs & Border Protection with the notation “PE-1,” as a “List A” document of identity and employment authorization.
The pre-publication version of the rule and its preamble run to 155 double-spaced pages. Once it is published in the Federal Register, expected in the next few days, the public will have 45 days to offer comments. Proving eligibility as an International Entrepreneur will require a $1,200 filing fee, completion of an Application for Entrepreneur Parole (Form I-941) and the submission of extensive evidence. USCIS will review the evidence and give a thumbs-up approval or deny the application with no right of rehearing or appeal.
In order to qualify, the parole applicant must show that the start-up entity has the “substantial potential for rapid growth and job creation.” This can be established through investments from established “U.S. investors (such as venture capital firms, angel investors, or start-up accelerators).” The parole applicant may prove this with evidence that the “entity has received investments of capital totaling $345,000 or more from established U.S. investors with a history of substantial investment in successful start-up entities.” USCIS proposes that aside from the parole applicant, only U.S. citizens and lawful permanent residents (green card holders) may invest in the start-up. A start-up entity may employ no more than three entrepreneurial parolees, according to the USCIS proposed rule.
Alternatively, the proposed rule suggests that the submitted evidence should include proof of grants or awards of at least $100,000 from local, state or federal government entities that have “provided support for economic, research and development, or job creation purposes.”
Venture capitalists and foreign entrepreneurs — who have waited since November 2014 to see how USCIS would articulate President Obama’s Executive Action announcing a proposed rule — are likely to be disappointed. They may see the benefit of entrepreneurial parole as too small and too short in duration in return for the effort to establish the proposed rule’s very burdensome and narrow requirements. Moreover, they may be disappointed to learn that the USCIS proposal fails to take into account the harm associated with a revocation of parole (whether based on material business changes or otherwise) and the absence of any administrative or judicial review. Also disappointing is the realization that the proposed regulation offers no pathway to lawful permanent resident status.
Fortunately, however, if USCIS receives compelling and substantiated comments within the next 45 days, the final rule may become a more viable avenue to jump-start innovation, job creation and economic growth. Only time will tell.
Revised Special Bulletin! - August 31, 10:15 am:
According to a Mother Jones story, at least four models have alleged that Donald Trump's company, Trump Model Management, brought them to the US to work illegally on tourist visas.
The same story alleges that Trump's company instructed at least one of the models to lie about her intended activities in the US at the time of immigration inspection, and that the company grossly exploited and took advantage of its models while they were in the US.
Some of the allegations against Trump's company mentioned in the story could constitute federal felonies, if proven (which they have not been).
If these allegations turn out to be accurate, what would that say about Trump's own credibility and qualifications to be America's Immigration Enforcer in Chief (or Hypocrite-in-Chief)?
What would they say about his character and fitness to be President of the United States?
The full Mother Jones story is at:
My original post follows:
The great debate over mass deportation and other immigration policy issues is continuing, with Donald Trump leading the hard line faction against another presidential candidate who is pushing for a "softening" on deportation and who also happens to be named Donald Trump.
We may find out more about who will win this debate when one of the Donald Trumps (or maybe both of them) gives what has been heralded as a major speech on immigration in Arizona on August 31. See:
As the above article shows, Trump is in a hard position - he needs to reach out to Latinos and other minority voters, but he cannot afford to antagonize his influential major boosters such as columnist Ann Coulter or Sen. Jeff Sessions (R-Ala.), who will denounce him as an "open-borders" or "amnesty" sell out if he favors sparing even one Latino or other non-white "illegal" immigrant in America from deportation.
For whatever it is worth, here is my prediction. Trump will talk about America's wonderful immigration heritage, about how immigration has made this country great, about all the benefits that America is continuing to receive from immigration, and about how much he "loves" immigrants.
Half way through his speech, Coulter, Sessions and many others in his hard line base may throw fits and have to be carried out from wherever they may be watching.
But then, I predict, Trump will say that our immigration system is "broken", that it is "flooded" with "illegals", "criminals" and "terrorists", and that the only way to "fix" it is to kick out 11 million unauthorized immigrants and close our doors to most, if not all legal immigration, until "we" (i.e. Trump himself) figures out "what the h--- is going on."
That, he will conclude, is the only way we can finally have an immigration system that will work, and make America "truly" great again.
If my prediction is correct, Trump's pitch will be not unlike what some conservatives are now saying about Social Security - that it is going bankrupt, and the only way to "save" it is to privatize it or to cut benefits to the vanishing point.
In other words, Trump might offer America a vision of a wonderful, really fantastic, immigration system, an amazing one such as America has never had before and that only Donald Trump can create for us.
The only downside is that it might be one that is almost without immigrants.
Anyway, this is one observer's prediction about Trump's immigration speech. If I am right, you read it here first. If not, well there are always plenty of other things to read.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards. Roger's email address is firstname.lastname@example.org
Updated 08-31-2016 at 01:05 PM by ImmigrationLawBlogs
Recently, the Board of Alien Labor Certification Appeals (“BALCA’) considered whether a search results page could serve as alternative documentation to dated copies of the posting on the employer’s website. In Matter of Spring Branch Independent School District, the employer sponsored the position of “Elementary (Pre-K-5th grade) – Bilingual (Spanish) Teacher.” The case was audited and the employer submitted a copy from its human resources job search page showing the position’s title, the salary, the position’s classification as professional, and that the role would have a probationary contract. No other information regarding the role was provided on this page. The Department of Labor (“DOL”) denied the case on the basis that the employer failed to provide copies of the website posting that included the language of the advertisement. In reviewing the case, BALCA noted that an employer may provide alternative documentation of its website positing beyond dated copies of the website listing. However, it also found the content of these advertisements must be provided so that the DOL can determine “whether the advertisement is for the occupation listed on the ETA Form 9089 and whether the advertisement was placed in good faith and the job was clearly open to U.S. applicants.” Consequently, the denial was upheld. While employers can use alternative documentation to prove that a position was listed on the employer’s website, the Hammond Law Group suggests that dated copies of the website posting that include the language of the advertisement be included in the recruitment report and in any response to an audit. This post originally appeared on HLG's Views Blog by Cadence Moore. http://www.hammondlawgroup.com/blog/
Statement by Secretary Jeh C. Johnson on Establishing a Review Of Privatized Immigration Detention
August 29, 2016
For Immediate Release
DHS Press Office
On August 18, the Department of Justice announced that the Bureau of Prisons will reduce and ultimately end its use of private prisons. On Friday, I directed our Homeland Security Advisory Council, chaired by Judge William Webster, to evaluate whether the immigration detention operations conducted by Immigration and Customs Enforcement should move in the same direction. Specifically, I have asked that Judge Webster establish a Subcommittee of the Council to review our current policy and practices concerning the use of private immigration detention and evaluate whether this practice should be eliminated. I asked that the Subcommittee consider all factors concerning ICE’s detention policy and practice, including fiscal considerations.
A subcommittee of the HSAC will undertake this review, and the full HSAC will provide to me and the Director of U.S. Immigration and Customs Enforcement its written report of its evaluation no later than November 30, 2016.
Please email your letters to email@example.com or post them directly as a comment below.