Angelo A. Paparelli on Entrepreneurs, Parole, Babies and Bathwater

Angelo A. Paparelli, Aug. 14, 2017 - "The pattern by now is all too familiar. With the Trump Administration fully ensconced, the rollback of President Obama’s eight-year legacy continues. This time it involves the International Entrepreneur Regulation — an imperfect and burdensome rule that would have become effective last month had the Administration not  imposed a delay. The Obama-era rule created a labyrinthine human steeplechase allowing a few foreign entrepreneurs, in league with U.S. venture capitalists, to secure an immigration benefit through “parole” by together investing $250,000.Parole is a statutory immigration benefit that allows lucky parolees to enter the U.S. without a visa. If U.S. Customs and Border Protection (CBP) or U.S. Citizenship and Immigration Services (USCIS) grants parole, one or the other agency must determine on a case-by-case basis that urgent humanitarian reasons or a significant public benefit warrant the grant of this extraordinary, discretionary privilege.

At the 11th hour, however, United States Citizenship and Immigration Services (USCIS) announced its intention to rescind the regulation, claiming that the rule conflicted with a January 25, 2017 Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” which required the Secretary of Homeland Security to “take appropriate action to ensure that parole authority under  [Immigration and Nationality Act] section 212(d)(5) . . . is exercised only on a case-by-case basis.” Thus, USCIS invited the public to tell the agency why the rule should or should not be rescinded.

Last week, I took USCIS up on its offer and sent the following comment:

August 10, 2017
Samantha Deshommes
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529

Submitted via:  http://www.regulations.gov/

Re:      International Entrepreneur Rule: Delay of Effective Date

82 Fed. Reg. 31887 (July 11, 2017)

DHS Docket No. USCIS-2015-0006

Dear Ms. Deshommes:

I respectfully submit this comment in my individual capacity as an interested immigration stakeholder in response to the notice of the Department of Homeland Security (DHS), “International Entrepreneur Rule: Delay of Effective Date,” published in the Federal Register at 82 Fed. Reg. 31887 (July 11, 2017).

I am an attorney admitted to practice law and in good standing in the States of Michigan (1976), California (1981), and New York (2005).

My comment to the captioned DHS Docket No. USCIS-2015-0006 notice hereby incorporates by reference the August 10, 2017 comments of the American Immigration Lawyers Association (AILA) and the American Immigration Council (Immigration Council); the October 17, 2016 comments of the Alliance of Business Immigration Lawyers (ABIL) to an earlier version of the proposed international entrepreneur regulation, and my August 26, 2016 Nation of Immigrators blog post, entitled, “Venture Capitalists and Immigration Proponents Likely Disappointed by USCIS Proposed Entrepreneurial Parolee Rule”.

While I concur in these incorporated comments which suggest numerous improvements to the extant version of the final International Entrepreneur regulation (the Final Regulation), I write separately in the event that DHS and U.S. Citizenship and Immigration Services (USCIS) determine, despite the comments, that they will nonetheless proceed with their stated intention to revoke the Final Regulation.

The Trump Administration is understandably concerned about blanket parole authorizations and apparently believes emphatically that statutory parole authority should be exercised on a case-by-case basis. With respect, I maintain that the USCIS’s Final Regulation and its Supplementary Information convincingly demonstrate that the requirement that case-by-case parole adjudications would in fact be accorded to International Entrepreneurs who apply for parole.

Should the Administration nevertheless proceed, however, to revoke the International Entrepreneur Final Regulation I urge that the revocation be simultaneously replaced by the issuance of an Executive Order or the adoption of binding policy to be incorporated into the USCIS Policy Manual that would more generously incentivize foreign and domestic entrepreneurs and their joint-venture partners who in good faith endeavor to create desirable jobs for American workers.

Thus, I offer the following suggestions for inclusion in an Executive Order or a new chapter on international entrepreneurs in the USCIS Policy Manual, and ultimately, in a proposed and final regulation following public notice and an opportunity to comment.

1. Parole authority under the Final Regulation – because of the inherent limitations and restrictions of parole admission – is at best a less than optimal way to attract and enable entrepreneurs to innovate in the United States. Parole offers no direct path to a work visa or permanent resident status, and a grant of parole is an unreviewable discretionary decision offering finite benefits. Parole is not a nonimmigrant status within the existing authority of the Immigration and Nationality Act for employment-based foreign citizens seeking to come to the United States. A better and likely more successful regulation encouraging foreign entrepreneurs and innovators to cast their lots with the United States should be based upon existing authority under the Immigration and Nationality Act (INA) for the importation of employment-based workers.

1. Existing authority under the INA’s employment-based nonimmigrant and permanent resident visa categories already endows the Trump Administration with power to immediately publish an Executive Order or amend the USCIS Policy Manual, and in due course to publish proposed and final rules which would define specific examples and circumstances under which qualified and worthy entrepreneurs would be authorized to enter and work in the United States on a temporary or permanent basis. Included among these provisions are the O-1 visa for extraordinary ability individuals, and the employment-based immigrant visa categories for extraordinary ability individuals (EB-1-1), outstanding professors or researchers (EB-1-2), individuals of exceptional ability or advanced degree holders based on a national interest waiver (EB-2), and an expansively interpreted restatement of the Department of Labor’s Schedule A, Group II labor certification exemption (also EB-2).

1. Were the Trump Administration to take the actions suggested above under existing INA authority, it should do so by adopting more reasonable requirements that better reflect business reality and legitimate practices in the startup sector than those contained in the Obama Administration’s Final Regulation. Such an effort would be far more likely to create well-paying jobs for US workers in new industries, and offer world-class innovations in American goods and services. Such a rule would also advance President Trump’s objective to Make America Great Again, would more likely enhance entrepreneurial innovation in the United States, and would better compete for the scarce supply of entrepreneurs and innovators against alternative national immigration schemes such as those offered by Canada and other countries that compete for the same scarce global pool of talented entrepreneurs.

* * *

For these reasons, I respectfully ask USCIS and DHS that they not throw out the entrepreneurial baby, even if they must toss the parole bathwater. Thank you for considering my comment.

Sincerely,

Angelo A. Paparelli

Blogger and Immigration Lawyer"