On Dec 13 2017 by Andrew J. Zeltner

CLIENT ALERT: New Hope for International Entrepreneurs and the “Start-Up” Visa

By Andrew J. Zeltner

A recent federal court decision brings good news to international entrepreneurs hoping to utilize the International Entrepreneurial Rule (IER) or the “Start-up Visa.” Issued in the waning days of the Obama administration (see January 2017 client alert here), the IER provides an important path for international entrepreneurs to obtain permission to be “paroled” into the United States and receive temporary work authorization for a startup business.

In National Venture Capital Association v. Duke, the Court was faced with the question of whether DHS properly bypassed traditional notice and comment rulemaking to delay the implementation of the start-up visa. In a clear rebuke to the Administration’s position, the Court granted the Plaintiffs’ summary judgement motion and held that DHS did not have “good cause” to dispense with the APA’s notice and comment requirements. The Court’s ruling reiterated the relatively high bar for invocation of the “good cause” exception and held that the government’s last-minute attempt to delay implementation of the rule (see July 2017 client alert here) — mere days before the rule was scheduled to take effect — negated any legitimate governmental claim of good cause.

At this time, it is unclear whether DHS will appeal the Court’s ruling. Moreover, a draft order to rescind the rule (and fully comply with the notice and comment provisions of the APA) is currently being reviewed by the Trump Administration and is expected to be published in the Federal Register in the coming weeks. In the interim, however, the rule is effective, so USCIS must begin to accept international entrepreneur applications. While USCIS has yet to issue an official application form, the District Court would likely frown on any refusal to accept a parole application under the IER at this point. This decision is clearly promising and may become an additional viable option for international entrepreneurs to remain in the U.S.

If you are interested in and prepared to file an application under the IER, please contact your Klasko attorney. In addition, Klasko has also been able to successfully craft creative strategies for international entrepreneurs utilizing existing visa programs.

If you haven’t already, please sign up for Klasko Client Alerts and newsletters as we follow the activities around the IER.