International Entrepreneur Rule: Delay of Effective Date

The Department of Homeland Security (DHS) is temporarily delaying the effective date of the International Entrepreneur Final Rule (82 FR 5238). The effective date of the regulation entitled International Entrepreneur Rule, published in the Federal Register on January 17, 2017, 82 FR 5238, is delayed from July 17, 2017 to March 14, 2018, except for amendatory instruction 6.a revising 8 CFR 274a.2(b)(1)(v)(C)(2), which will go into effect on July 17, 2017. Written comments must be received on or before August 10, 2017.

On August 31, 2016, the Department of Homeland Security (DHS or Department), U.S. Citizenship and Immigration Services (USCIS) published the International Entrepreneur Notice of Proposed Rulemaking in the Federal Register. See 81 FR 60129. On January 17, 2017, DHS published the International Entrepreneur Final Rule (the IE Final Rule) in the Federal Register. The effective date is July 17, 2017. See 82 FR 5238. This delay will provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order (E.O.) 13767, “Border Security and Immigration Enforcement Improvements.”

The IE Final Rule amended DHS regulations to include criteria that would guide the implementation of the Secretary of Homeland Security's discretionary case-by-case parole authority as applied to international entrepreneurs. Specifically, it applied to international entrepreneurs who can demonstrate that their parole into the United States under section 212(d)(5) of the Immigration and Nationality Act (INA) would provide a significant public benefit to the United States. In accordance with the final rule's criteria, such potential would be indicated by, among other things, the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain Federal, State or local government entities. In addition to defining criteria for the favorable exercise of the Secretary's discretionary parole authority, the IE Final Rule established a period of initial parole stay of up to 30 months (which may be extended by up to an additional 30 months) to facilitate the applicant's ability to oversee and grow his or her start-up entity in the United States.

On January 25, 2017, the President issued Executive Order (E.O.) 13767, Border Security and Immigration Enforcement Improvements, prescribing improvements to border security and immigration enforcement. See 82 FR 8793 (Jan. 25, 2017). Section 11(d) of the E.O. requires the DHS Secretary to “take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

After review of E.O. 13767, DHS decided to delay the effective date of the IE Final Rule, to further consider it in light of E.O. 13767. The new effective date for the IE Final Rule, with one minor exception, is March 14, 2018. Additionally, DHS will issue a Notice of Proposed Rulemaking soliciting public comments on the proposal to rescind the IE Final Rule. The delayed effective date will provide an opportunity for the notice and comment rulemaking to take place.

As indicated above, DHS is not delaying the effective date with respect to one provision in the IE Final Rule. In the IE Final Rule, DHS revised 8 CFR 274a.2(b)(1)(v)(C) (2) to add the Department of State Consular Report of Birth Abroad (Form FS-240) to the regulatory text and to the “List C” listing of acceptable documents for Form I-9 verification purposes. See 82 FR 5238, 5241 & n.3. As part of the IE Final Rule, DHS also revised the accompanying form instructions to reflect this change. As this provision is unrelated to entrepreneur parole under the IE Final Rule, this one provision will go into effect on July 17, 2017, as originally provided.


This article is for background purposes only and is not intended as legal advice or legal document. Please contact a professional immigration attorney for legal consultation and service.