On July 10, 2015 American Immigration Lawyers Association (AILA) submitted its comments to USCIS on the proposed “Significant Public Benefit” Parole for Entrepreneurs program that I wrote about in a previous blog post, USCIS Holds Entrepreneur Parole Listening Session. As a recap, USCIS is looking at extending its already existing parole authority at 8 CFR 212.5 to certain entrepreneurs that do not fit easily into existing visa options in order to attract or retain start ups, and research and development innovators in the US absent action by Congress to fix the existing categories.  The deficiencies of the existing categories and the comments at the listening session are mentioned in my earlier blog post.  USCIS is requesting the public to send in comments to public.engagement@uscis.dhs.gov.

AILA’s comments are as follows, and track many of the issues raised during the listening session:

• The significant public benefit parole for entrepreneurs program requires flexibility. This includes not requiring a minimum investment amount or “substantiality” as in the E-2 visa regulations, or rigid rules on business plans as in the EB-5 area, or strict evidentiary criteria on who “holds promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.”
• USCIS should recognize that start-ups attract varying amounts of capital that differ across industries, sub-industries and geographic locations making it unrealistic to have a one-size-fits all capital contribution requirement.
• Because prospective investors want assurance the founder, inventor or key immigrant entrepreneur will have a solid, reliable immigration status before investing, there should be less focus on already “secured” U.S. investor financing.  Focus instead should be on the “promise of” substantial U.S. investor financing.
• To prove “the promise of innovation or job creation,”  USCIS should have an evidence list of what could be provided but is not required, along the lines of the optional criteria in the O and P, and EB-1/EB-2 categories (although not requiring that caliber of evidence in these crème de la crème categories).
• Adjudicators should be highly trained on entrepreneurial issues and be at a centralized center for processing applications in this category to ensure consistent and thoughtful adjudications.
• EB-5 investors stuck in the queue (either quota or processing backlogs) should be allowed get parole while their cases are pending. This would include those people with pending I-526s in the US or abroad.
• The entrepreneur parole program will only be as good as the program allows for entrepreneurs to be successful.  This includes approving status for at least three years instead of the customary “new office” L-1 visas issued for one year; allow for travel and re-parole; and allow concurrent applications for parole and work authorization at the same time to streamline the process.  Overall, the program needs to recognize and accommodate business realities. The program will be useless and a failure if it is too difficult, expensive or too risky.

Next, USCIS will be drafting regulations for public comment. Whether this program will become a reality depends in large part on how the comment process goes and whether Congress gets it together to vote on any of the pending business immigration bills that have been proposed but never been brought up for a vote.