Bad News for International Entrepreneur Rule

According to the United States Customs and Immigration Service (USCIS), the Department of Homeland Security (DHS) has proposed to end the international entrepreneur rule, also known as the Start Up Visa. Although intended to bolster the economy through permitting new startups in the United States, DHS claims the Obama era International Entrepreneur Rule fails to produce positive outcomes for U.S. firms and workers. The international entrepreneur program  will  remain in effect until at least the end of the public comment period on June 28th.

A Battle Between the Court & Trump

Since President Trump took office in 2017, the Obama era Start Up program has been a topic of much contention. Under the power of “parole” authority, the International Entrepreneur Rule allows DHS to admit certain entrepreneurs who do not qualify for other specialized visas (i.e. H-1B & E-2). Set to originally launch in July of 2017, the program was delayed by President Trump’s Executive Order (EO)Border Security and Immigration Enforcement Improvements. Under the direction of the EO, DHS decided to postpone the program and draft a ruling to terminate it altogether. In December of 2017, however, a Federal court judge reinstated the program in response to NVCA v. Duke. In the case, the judge criticized DHS for administering the delay for the Start Up Visa program without a period for public comment.

DHS is determined not to repeat past mistakes; the decision to end the Start Up visa is now open for an appropriate term of public comment. For those interested in the program, however, last week’s announcement indicates a likely demise of the international entrepreneur rule. According to the DHS report, the “program is not the appropriate vehicle for attracting and retaining international entrepreneurs and does not adequately protect U.S. investors and U.S. workers employed by or seeking employment with the start-up.” DHS also notes that the process by which the visa is granted, through the emergency parole powers given to the Secretary of the DHS, is an unorthodox method to establish visa benefits. Without a provision to protect U.S. workers, the program is likely to fail.