INTERNATIONAL ENTREPRENEUR PAROLE RULE

Life in an Ivory Tower was once a romantic and attainable pursuit for researchers, professors, and scientists who desired to transform their academic and scientific passions into a profession. Increasingly, however, researchers’ and scientists’ everyday lives are trending away from academia, and towards the private sector. World-famous professors and scientists are frequently assuming the CEO role in new rapidly growing organizations. Graduate students, post-docs, and scientists are frequently invited to join the ranks of various new entities that are, increasingly, turning out to be some of the most successful new ventures of our time. Placing researchers and scientists into high-level, executive roles is undoubtedly a natural step for any scientist attempting to commercialize a new technology or research while, simultaneously, finding practical applications for novel ideas and technology in the real world. Massachusetts, which is an epicenter of highly educated biology and medical researchers with entrepreneurial spirit, accordingly touts pharmaceutical, medicinal, and life sciences as some of its top industries.

If you, however, are an immigrant researcher or scientist whose Visa status is tied up with, or more appropriately tied to, your current employer, then this is not your story. The Visas provided to immigrant researchers and scientists often do not allow an individual to work outside of their employment; the Visa rules do not provide individuals with the freedom to even moonlight for their own ventures. Innovative ideas of researchers and scientists, ideas that often originate at, yet are completely distinct from, an employee’s place of employment, more often than not belong to the employee’s employer in accordance with an Intellectual Property Assignment Agreement or Confidentiality Agreement. While individuals may not mind if their employer actually owns their distinct and novel invention, so long as they are provided with a certain percentage of royalties in connection with future licensing and sales, such individuals often find that their employer will simply act as a passive-entrepreneur. This passive-entrepreneurial role, which is assumed by the employer, unfortunately, is antithetical to how the researcher or scientist himself would have acted if provided with the freedom that is necessary to market and sell their idea.

Therefore, many immigrant researchers and scientists, those with serious intentions to launch a startup entity, will often choose to obtain a green card through either the EB-1 or EB-2 immigration process. EB-1 and EB-2 immigration Visas, while much more flexible in terms of secondary employment, unfortunately require immigrants to endure a prolonged and protracted immigration process. This lengthy process takes not only time, but resources and energy; once this process is complete, many researchers often find that they have run out of both the steam and energy required to launch a business (and they simply end up with a salaried position, which, of course, still pays slightly better than their old position). The flawed prohibitions against secondary employment, and the lengthy time-consuming immigration processes, are plainly against the American ideal; they discourage, and ultimately prevent, significant potential public benefits that would accrue to the citizens of the states. Fortunately, the Obama administration has recognized the pitfalls and hindrances the currents rules pose on potential immigrants, and the American public, and, accordingly, the Department of Homeland Security has released proposed rules surrounding a new entrepreneurial immigration program: the International Entrepreneur Rule(s).  

Immigrant researchers, scientists, and professors, those with ideas, inventions, and technologies that are able to create jobs, advance the economy, and enhance innovation, will soon be eligible to apply for the parole to stay in the United States to develop their businesses. They will have to first, however, prove that they: (i) formed their business within the three years immediately preceding the filing of the parole application; (ii) own at least 15% of the business at the time of the application for parole; (iii) maintain at least a 10% level of ownership through the duration of parole; and (iv) demonstrate the potential for rapid and substantial business growth and job creation (which must be evidenced by the receipt of a significant investment of capital (at least $345,000.00) from certain U.S. private investors with established records of successful investments, or by receiving significant grants (at least $100,000.00) from U.S. governmental entities, or by partially satisfying these criteria and showing other compelling evidence that the business has potential for rapid growth and job creation)

Researchers, professors, and scientists with an entrepreneurial spirit have been long awaiting a so-called entrepreneur Visa since the announcement by the Obama administration of Executive Actions in November 2014. Even though this rule does not amount to a promised Visa status, and is somewhat risky to take, it is clearly a worthwhile opportunity for any immigrant entrepreneur to take. After all, entrepreneurial achievements and risk taking go hand in hand. ​