Silicon Valley May Finally Get Special Approval for Foreign Founders to Enter the US

The hardest part of building a startup for many is just arriving in the United States. For six years straight, Silicon Valley lobbied hard to get Washington to offer visas to foreigners who wanted to launch companies in the U.S., but despite bipartisan support in Congress, the effort failed last year because “few people were willing to make it a priority,” immigration activist Craig Montuori told Bloomberg.

Meanwhile, the Obama administration says it is preparing to commit to a compromise of sorts: an International Entrepreneur Rule proposed by the Homeland Security Department on Aug. 26. It’s not a visa, and as administration officials wrote in a blog post “there is no substitute for legislation.” But, they added, “the administration is taking the steps it can within existing legal authorities to fix as much of our broken immigration system as possible.”

The measure allows foreign entrepreneurs to enter the U.S. for up to five years to start and grow their companies. DHS estimates 2,940 entrepreneurs (pdf; p. 130) could qualify each year.

Applicants must hold at least a 15 percent stake in a company started within the last three years, play an operational role in their organization, and secure at least $100,000 in government grants or $345,000 from credible U.S. investors. (There’s some leeway: partial fulfillment of those criteria could be sufficient with evidence of a company’s growth potential.)

The International Entrepreneur Rule does not create new authority but instead directs Customs and Border Protection officials to use their existing authority to grant applicants “parole.” This temporary approval allows people to enter the country based on “urgent humanitarian” or “significant public benefit” grounds, a rationale already applied for everything from visiting dignitaries to court witnesses, states the 155-page proposal.

Yet, two catches may trip up some founders seeking a visa. First, those trying to gain U.S. admittance under the rule can’t leave the country without securing a second approval upon re-entry, and that approval is highly discretionary. Prior authorization for parole by the U.S. Citizenship and Immigration Services does not guarantee founders can enter the U.S.

That will be up to CBP officials at the point of entry responsible for screening new arrivals (although the rules presumes CBP will be more inclined to grant permission). Second, parole also does not guarantee permission to work. Founders will still need to apply for such authorization with immigration officials.

Once the first two years are up, founders will need to show they are indeed contributing to the “public benefit” of the U.S. economy. Although the rule’s wording leaves some wiggle room, it suggests baseline of sorts to secure a 3-year extension: at least 10 full-time jobs created by the start up and $500,000 in revenue.

The rule does not require congressional approval, but will only take effect following 45 days of public comment and a date set after publication in the Federal Register.