Will President-Elect Trump Revise, Block or Pass Parole for Entrepreneurs?

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For the past couple of weeks since the presidential election, many foreign founders have asked what’s going to happen to the Parole for Entrepreneurs that is currently under review by USCIS.  You’ll recall that USCIS announced in late August a Parole for Entrepreneurs that would allow eligible foreign founders who have secured at least $345,000 from private venture capital firms or $100,000 from a government source to request permission to stay in the U.S. to operate their startup.  The public comment period closed on October 17, 2016.

While we all know it’s a wait and see approach at this point, let’s lay out the options:

Hypothetical #1: Revise the Regulation:

What would revising the regulation look like and how long would it take?  If USCIS were to take into consideration new directives from its new boss, it’s theoretically possible that USCIS could substantively revise the regulations as it was initially released back in September 1, 2016.  In that event, USCIS could reissue a second proposal for public comment and endure another round of public comment, for either 45 or 60 days, regarding the revised proposal.  After USCIS reviews all comments, it could then issue a final regulation at some point in the future.  We’re talking at least another six months after January 20, 2017 before a revised regulation.

Hypothetical #2: Block the Regulation:

Another scenario could be if President-Elect Trump decided that Parole for Entrepreneurs was an unconstitutional action by now President Obama, then President-Elect Trump could block the regulation entirely by redirecting the priorities that USCIS should undertake.  This could happen because the President has the powers to enforce existing laws of the U.S.  In this case, USCIS is overseen by the Department of Homeland Security, which is headed by a Secretary who is appointed by the President.  As of the time of publication of this article, the Department of Homeland Security has yet to be appointed by President-Elect Trump.  Thus, if the Parole for Entrepreneurs regulation is blocked, then we the public likely won’t see any updates on the regulation becoming a final rule.

Hypothetical #3: Pass the Regulation:

As I stated in my earlier analysis, President-Elect Trump is an entrepreneur himself.  He may very well allow the proposed regulation to become final and go into effect.  If this were to happen, how quickly could the rule go into effect?  Best case scenario, USCIS would need to issue a final rule sometime in the near future and the rule could go into effect 60 days from the final rule.  Theoretically, the rule could be implemented as soon as Q1 of 2017.  The rule itself, as proposed, has fairly stringent guidelines, targets only a small subset (approximate 2940 entrepreneurs) whose ultimate goals are to create U.S. jobs in order to continue to be eligible for work authorization.  It’s really a drop in the bucket.

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