Rule2024-16138
International Entrepreneur Program: Fiscal Year 2025 Automatic Increase of Investment and Revenue Amount Requirements
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 25, 2024
Effective
October 1, 2024
Issuing agencies
Homeland Security DepartmentU.S. Citizenship and Immigration Services
Abstract
On January 17, 2017, DHS published a final rule with new regulatory provisions guiding the use of parole on a case-by-case basis with respect to certain entrepreneurs of start-up entities. The 2017 regulation provided that the investment and revenue amount requirements would automatically adjust every three years. DHS is issuing this rule to update the investment and revenue amounts in the regulations to adjust for inflation.
Full Text
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<title>Federal Register, Volume 89 Issue 143 (Thursday, July 25, 2024)</title>
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[Federal Register Volume 89, Number 143 (Thursday, July 25, 2024)]
[Rules and Regulations]
[Pages 60298-60301]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16138]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Part 212
[CIS No. 2769-24; DHS Docket No. USCIS-2021-0018]
RIN 1615-AC75
International Entrepreneur Program: Fiscal Year 2025 Automatic
Increase of Investment and Revenue Amount Requirements
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS).
ACTION: Final rule; technical amendment.
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SUMMARY: On January 17, 2017, DHS published a final rule with new
regulatory provisions guiding the use of parole on a case-by-case basis
with respect to certain entrepreneurs of start-up entities. The 2017
regulation provided that the investment and revenue amount requirements
would automatically adjust every three years. DHS is issuing this rule
to update the investment and revenue amounts in the regulations to
adjust for inflation.
DATES: This final rule is effective on October 1, 2024.
FOR FURTHER INFORMATION CONTACT: For technical questions only: Charles
L. Nimick, Chief, Business and Foreign Workers Division, Office of
Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 5900 Capital Gateway Drive, Camp
Springs, MD 20588-0009, telephone (240) 721-3000 (this is not a toll-
free number).
SUPPLEMENTARY INFORMATION:
I. Background
A. The International Entrepreneur Program
On January 17, 2017, the Department of Homeland Security (DHS)
published a final rule with new regulatory provisions guiding the use
of parole on a case-by-case basis with respect to entrepreneurs of
start-up entities. These entrepreneurs would be eligible for
consideration of parole if they could demonstrate a significant public
benefit to the United States through substantial and demonstrated
potential for rapid business growth and job creation.\1\ The final rule
was to be effective July 17, 2017.\2\
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\1\ 82 FR 5238 (Jan. 17, 2017).
\2\ Id.
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On July 11, 2017, DHS published a rule delaying the effective date
to March 14, 2018.\3\ Two individuals, two businesses, and the National
Venture Capital Association sued DHS, challenging the delay rule for
violating the Administrative Procedure Act's notice and comment
requirement at 5 U.S.C. 553. The D.C. Circuit, agreeing with the
plaintiffs, vacated the delay rule on December 1, 2017, allowing the
rule to go into effect without further delay.\4\
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\3\ 82 FR 31887 (July 11, 2017).
\4\ Nat'l Venture Capital Assoc., et al., v. Duke, 291 F. Supp.
3d 5 (D.D.C. Dec. 1, 2017).
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The regulatory provisions established by the January 17, 2017 rule,
which were implemented after the delay rule was vacated on December 1,
2017,\5\ provide specific investment and revenue amounts that can
support an application for parole and re-parole.\6\ The rule also
promulgated a regulatory provision at 8 CFR 212.19(l) stating that the
investment and revenue amounts will be automatically adjusted every 3
years by the Consumer Price Index for All Urban Consumers (CPI-U) and
posted on the USCIS website at <a href="http://www.uscis.gov">www.uscis.gov</a> and that investment and
revenue amounts adjusted under 8 CFR 212.19(l) will apply to all
applications filed on or after the beginning of the fiscal year for
which the adjustment is made.\7\
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\5\ On May 29, 2018, DHS published a notice of proposed
rulemaking (NPRM) to remove the international entrepreneur program
from DHS regulations, but never finalized the proposal. See 83 FR
24415 (May 29, 2018). Instead, on May 11, 2021, DHS withdrew the
NPRM. See 86 FR 25809 (May 11, 2021).
\6\ See 8 CFR 212.19(a)(5), (b)(2)(ii), and (c)(2)(ii).
\7\ While DHS did not discuss these automatic adjustments in the
preamble to the final rule, DHS explained in the proposed rule that
it believed that automatically adjusting the minimum dollar amounts
by the CPI-U every 3 years will maintain investment and revenue
requirements at an appropriate level in relation to future economic
conditions. DHS also believed automatically adjusting the minimum
dollar amounts in 3-year increments would be more manageable
operationally for DHS and less burdensome to applicants than
adjustments at more frequent intervals. See generally 81 FR 60129,
60151 (Aug. 31, 2016).
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B. Investment and Revenue Increased for Fiscal Year 2022
On September 13, 2021, DHS issued a final rule (the 2021 final
rule) adjusting the investment and revenue
[[Page 60299]]
amounts beginning in FY 2022.\8\ The automatic adjustment required by 8
CFR 212.19(l) affected the amounts then stated in 8 CFR 212.19(a)(5)
(2020) (no less than $600,000 in aggregate investments by the
qualifying investor and at least $500,000 in revenue by at least two
entities), 8 CFR 212.19(b)(2)(ii)(B) (2020) (at least $250,000 in
investments or at least $100,000 in government awards or grants), and 8
CFR 212.19(c)(2)(ii)(B) (2020) (at least $500,000 in additional
investment or revenue). As shown in the 2021 final rule, these amounts
were adjusted for inflation using the CPI-U calculator published by the
Department of Labor, Bureau of Labor Statistics.\9\
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\8\ 86 FR 50839 (Sept. 13, 2021). The current amounts and
analysis for calculating them appears in that rule.
\9\ See <a href="https://www.bls.gov/data/inflation_calculator.htm">https://www.bls.gov/data/inflation_calculator.htm</a>.
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In light of these automatic adjustments in December 2020, beginning
in FY 2022, under 8 CFR 212.19(b)(2)(ii)(B) as updated by the 2021
final rule, an applicant may be considered for initial parole, on a
case-by-case basis, if they demonstrate that their entity has received,
within 18 months immediately preceding the filing of an application for
initial parole, either a qualified investment amount of at least
$264,147 from one or more qualified investors or an amount of at least
$105,659 through one or more qualified government awards or grants. In
the alternative, an applicant who partially meets one or both of those
criteria may still qualify for further consideration by providing other
reliable and compelling evidence of the start-up entity's substantial
potential for rapid growth and job creation. Similarly, revised 8 CFR
212.19(c)(2)(ii)(B) provided that an applicant may be considered for
re-parole if they establish that during the initial parole period,
their entity:
<bullet> Received at least $528,293 in qualifying investments,
qualified government grants or awards, or a combination of such
funding, during the initial parole period;
<bullet> Created at least 5 qualified jobs with the start-up entity
during the initial parole period; or
<bullet> Reached at least $528,293 in annual revenue in the United
States and averaged 20 percent in annual revenue growth during the
initial parole period.
In the alternative, an applicant who meets the criteria in
paragraph (c)(2)(ii)(A) and partially meets one or more of the criteria
in paragraph (c)(2)(ii)(B) of Sec. 212.19 could still qualify for
consideration for re-parole by providing other reliable and compelling
evidence of the start-up entity's substantial potential for rapid
growth and job creation. Finally, revised 8 CFR 212.19(a)(5) defined a
qualified investor as an individual or investor who, among other
requirements, has made investments in start-up entities comprising a
total of no less than $633,952 in a specified 5-year period and,
subsequent to the investment, at least two of those entities each
created at least 5 jobs or generated at least $528,293 in revenue with
an average annualized revenue growth of at least 20 percent.
The revised amounts in the 2021 final rule were also posted on the
USCIS website, <a href="https://www.uscis.gov/working-in-the-united-states/entrepreneur-employment-pathways/nonimmigrant-or-parole-pathways-for-entrepreneur-employment-in-the-united-states">https://www.uscis.gov/working-in-the-united-states/entrepreneur-employment-pathways/nonimmigrant-or-parole-pathways-for-entrepreneur-employment-in-the-united-states</a>.
C. Investment and Revenue Increase Beginning With Fiscal Year 2025
In this final rule and in accordance with the 2017 final rule, DHS
calculates new investment and revenue amounts and revises the
applicable provisions to adjust for inflation.\10\ According to the
CPI-U calculator, $105,659 in December 2020 had a present dollar value
of $124,429 in December of 2023 (FY 2024); and $264,147 in December
2020 had a present dollar value of $311,071 in December 2023. The CPI-U
calculator also showed that $528,293 in December 2020 had a present
dollar value of $622,142 in December 2023; and $633,952 in December
2020 had a present dollar value of $746,571 in December 2023. Beginning
in Fiscal Year 2025 (i.e., beginning October 1, 2024), under 8 CFR
212.19(b)(2)(ii)(B) as updated by this final rule, an applicant may be
considered for initial parole on a case-by-case basis if they
demonstrate that their entity has received, within 18 months
immediately preceding the filing of an application for initial parole,
either a qualified investment amount of at least $311,071 from one or
more qualified investors or an amount of at least $124,429 through one
or more qualified government awards or grants.\11\ In the alternative,
an applicant who partially meets one or both of those criteria may
still qualify for further consideration by providing other reliable and
compelling evidence of the start-up entity's substantial potential for
rapid growth and job creation.\12\ Similarly, revised 8 CFR
212.19(c)(2)(ii)(B) provides that an applicant may be considered for
re-parole if they establish that during the initial parole period,
their entity:
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\10\ DHS rounded these amounts to the nearest dollar.
\11\ 8 CFR 212.19(b)(2)(ii)(B).
\12\ 8 CFR 212.19(b)(2)(iii).
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<bullet> Received at least $622,142 in qualifying investments,
qualified government grants or awards, or a combination of such
funding, during the initial parole period;
<bullet> Created at least 5 qualified jobs with the start-up entity
during the initial parole period; or
<bullet> Reached at least $622,142 in annual revenue in the United
States and averaged 20 percent in annual revenue growth during the
initial parole period.\13\
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\13\ 8 CFR 212.19(c)(2)(ii)(B).
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In the alternative, an applicant who meets the criteria in
paragraph (c)(2)(ii)(A) and partially meets one or more of the criteria
in paragraph (c)(2)(ii)(B) of Sec. 212.19 could still qualify for
consideration by providing other reliable and compelling evidence of
the start-up entity's substantial potential for rapid growth and job
creation.\14\ Finally, revised 8 CFR 212.19(a)(5) defines a qualified
investor as an individual or investor who, among other requirements,
has made investments in start-up entities comprising a total of no less
than $746,571 in a specified 5-year period and, subsequent to the
investment, at least two of those entities each created at least 5 jobs
or generated at least $622,142 in revenue with an average annualized
revenue growth of at least 20 percent.
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\14\ 8 CFR 212.19(c)(2)(iii).
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The revised amounts in this final rule will be posted on the USCIS
website, <a href="https://www.uscis.gov">https://www.uscis.gov</a>.
II. Statutory and Regulatory Requirements
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), as
Amended by E.O. 14094 (Modernizing Regulatory Review), and E.O. 13563
(Improving Regulation and Regulatory Review)
Executive Orders 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory Review), and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563
[[Page 60300]]
emphasizes the importance of quantifying costs and benefits, reducing
costs, harmonizing rules, and promoting flexibility.
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866, as amended by Executive Order 14094. Accordingly, OMB has
not reviewed this regulatory action.
The population that may be affected by this rule are the applicants
that file Form I-941, Application for Entrepreneur Parole, after this
rule becomes effective. Table 1 presents the historical annual receipts
for Form I-941 received for FYs 2018-2023. During this period, 112
total Form I-941 applications have been filed with USCIS, and DHS
estimates that USCIS received an average of 19 (rounded) Form I-941
applications per year.
Table 1--Annual Receipts of Form I-941, Application for Entrepreneur Parole, FY 2018-2023
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6-year
average
Form 2018 2019 2020 2021 2022 2023 annual
receipts
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Form I-941............................................ 19 8 1 24 39 21 19
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Source: USCIS, Immigrant Program Office, Claims 3 (C3) database (as of January 11, 2024).
Note: Calculation of 6-year Average Annual receipts is rounded up.
B. Administrative Procedure Act
Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency
may waive the normal notice and comment requirements if it finds, for
good cause, that they are impracticable, unnecessary, or contrary to
the public interest. The final rule merely updates the investment and
revenue amounts to account for inflation consistent with the regulatory
requirement at 8 CFR 212.19(l) providing that these amounts will
automatically adjust every three years by the Consumer Price Index.
This amendment is a technical change to ensure that the regulation
accurately reflects these updated investment amounts, automatically
adjusted for inflation, and avoids potential confusion for applicants
and other interested parties regarding the applicable investment
amounts under 8 CFR 212.19. Therefore, notice and comment for this rule
is unnecessary because the rule is simply a ministerial update to the
regulations. For the same reasons, pursuant to 5 U.S.C. 553(d)(3), a
delayed effective date is not required.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996
(SBREFA), requires an agency to prepare and make available to the
public a regulatory flexibility analysis that describes the effect of a
proposed rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions) when the agency is
required ``to publish a general notice of proposed rulemaking for any
proposed rule.'' \15\ Because this rule is being issued as a final
rule, on the grounds set forth in section II.A. of this rule, a
regulatory flexibility analysis is not required under the RFA.
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\15\ 5 U.S.C. 603(a).
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D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) \16\ is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule, that may directly
result in a $100 million or more expenditure (adjusted annually for
inflation) in any one year by State, local, and Tribal governments, in
the aggregate, or by the private sector. This rule is exempt from the
written statement requirement because USCIS did not publish a notice of
proposed rulemaking for this rule. Additionally, the inflation-adjusted
value of $100 million in 1995 is approximately $199.96 million in 2023
based on the Consumer Price Index for All Urban Consumers (CPI-U).\17\
This final rule does not contain such a mandate. The requirements of
title II of UMRA, therefore, do not apply, and DHS has not prepared a
statement under UMRA.
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\16\ 2 U.S.C. 1501 et seq.
\17\ See BLS, ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month,''
<a href="http://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202312.pdf">www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202312.pdf</a> (last visited Mar. 18, 2024). Calculation of inflation:
(1) Calculate the average monthly CPI-U for the reference year
(1995) and the current year (2023);
(2) Subtract reference year CPI-U from current year CPI-U;
(3) Divide the difference of the reference year CPI-U and
current year CPI-U by the reference year CPI-U;
(4) Multiply by 100 [(Average monthly CPI-U for 2023-Average
monthly CPI-U for 1995)/(Average monthly CPI-U for 1995)] * 100 =
[(304.702 -152.383)/152.383] * 100 = (152.318/152.383) * 100 =
0.99957 * 100 = 99.96 percent (rounded). Calculation of inflation-
adjusted value: $100 million in 1995 dollars * 1.9996 = $199.96
million in 2023 dollars.
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E. Executive Order 13132 (Federalism)
The rule will not have substantial direct effects on the States, on
the relationship between the National Government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with section 6 of Executive
Order 13132, DHS has determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. National Environmental Policy Act (NEPA)
DHS and its component agencies analyze their actions to determine
whether the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et
seq., applies to them and, if so, what degree of analysis is required.
DHS Directive 023-01, Revision 01 \18\ and ``Instruction Manual 023-01-
001-01 Revision 01, (Instruction Manual) \19\ establish the policies
and procedures DHS and its component agencies use to comply with NEPA
and the Council on
[[Page 60301]]
Environmental Quality (CEQ) regulations for implementing NEPA.\20\
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\18\ See DHS, ``Implementation of the National Environmental
Policy Act,'' Directive 023-01, Revision 01 (Oct. 31, 2014),
available at <a href="https://www.dhs.gov/sites/default/files/publications/DHS_Directive%20023-01%20Rev%2001_508compliantversion.pdf">https://www.dhs.gov/sites/default/files/publications/DHS_Directive%20023-01%20Rev%2001_508compliantversion.pdf</a>.
\19\ Available at <a href="https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf">https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf</a>.
\20\ 40 CFR parts 1500 through 1508.
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The CEQ regulations allow Federal agencies to establish, with CEQ
review and concurrence, categories of actions (``Categorical
Exclusions'') which experience has shown do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require the preparation of an Environmental
Assessment or Environmental Impact Statement.\21\ Appendix A of the
Instruction Manual- lists the DHS Categorical Exclusions.\22\ Under DHS
NEPA implementing procedures, for an action to be categorically
excluded, it must satisfy each of the following three conditions: (1)
The entire action clearly fits within one or more of the Categorical
Exclusions; (2) the action is not a piece of a larger action; and (3)
no extraordinary circumstances exist that create the potential for a
significant environmental effect.\23\
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\21\ 40 CFR 1507.3(e)(2)(ii) and 1501.4.
\22\ See Instruction Manual, Appendix A, Table 1.
\23\ See Instruction Manual, section V.B(2)(a) through (c).
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In this rule, DHS is updating regulations codified in 8 CFR part
212 to reflect the automatic increase of the investment and revenue
amount requirements for the International Entrepreneur Parole Program
effective October 1, 2024. On January 17, 2017, DHS published a final
rule with new regulatory provisions guiding the use of parole on a
case-by-case basis with respect to certain entrepreneurs of start-up
entities. The 2017 regulation provided that the investment and revenue
amount requirements would automatically adjust every three years. On
September 13, 2021, DHS issued a final rule that adjusted the
investment and revenue amounts as of October 1, 2021. DHS is issuing
this rule to update the investment and revenue amounts in the
regulations to adjust for inflation. DHS is not aware of any
significant impact on the environment, or any change in environmental
effect, that will result from this final rule. This rule is of a
strictly administrative nature to make required adjustments in
investment and revenue amounts. DHS finds promulgation of the rule
clearly fits within categorical exclusion A3, established in the
Department's NEPA implementing procedures.
This final rule is a standalone regulatory action applicable to the
International Entrepreneur Parole Program and is not part of any larger
action. In accordance with its NEPA implementing procedures, DHS has
determined that this final rule will not result in any major Federal
action that would significantly affect the quality of the human
environment, and that no extraordinary circumstances exist that would
create the potential for significant environmental effects requiring
further analysis and documentation. Therefore, this final rule is
categorically excluded and no further NEPA analysis or documentation is
required.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-
3512, DHS must submit to the Office of Management and Budget (OMB) for
review and approval, any reporting requirements inherent in a rule,
unless they are exempt. This rule does not call for a new collection of
information under the Paperwork Reduction Act of 1995. Separate from
but related to the technical amendments made in this Final Rule, DHS
has revised the Application for Entrepreneur Parole, Form I-941, to
conform with the new investment and revenue amounts set forth by this
Final Rule. The revised information collection has been submitted for
approval to the Office of Management and Budget (OMB) for review and
approval under procedures covered under the PRA.
List of Subjects in 8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
Amendments to the Regulations
For the reasons stated in the preamble, DHS amends 8 CFR part 212
as set forth below:
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
1. The general authority citation for part 212 continues to read as
follows:
Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note,
1102, 1103, 1182 and note, 1184, 1185 note (sec. 7209, Pub. L. 108-
458, 118 Stat. 3638), 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8
CFR part 2. Section 212.1(q) also issued under sec. 702, Pub. L.
110-229, 122 Stat. 754, 854.
* * * * *
0
2. In Sec. 212.19, revise paragraphs (a)(5)(i) and (ii),
(b)(2)(ii)(B)(1) and (2), and (c)(2)(ii)(B)(1) and (3) to read as
follows:
Sec. 212.19 Parole for entrepreneurs.
(a) * * *
(5) * * *
(i) The individual or organization made investments in start-up
entities in exchange for equity, convertible debt, or other security
convertible into equity commonly used in financing transactions within
their respective industries comprising a total in such 5-year period of
no less than $746,571; and
(ii) Subsequent to such investment by such individual or
organization, at least 2 such entities each created at least 5
qualified jobs or generated at least $622,142 in revenue with average
annualized revenue growth of at least 20 percent.
* * * * *
(b) * * *
(2) * * *
(ii) * * *
(B) * * *
(1) Received, within 18 months immediately preceding the filing of
an application for initial parole, a qualified investment amount of at
least $311,071 from one or more qualified investors; or
(2) Received, within 18 months immediately preceding the filing of
an application for initial parole, an amount of at least $124,429
through one or more qualified government awards or grants.
* * * * *
(c) * * *
(2) * * *
(ii) * * *
(B) * * *
(1) Received at least $622,142 in qualifying investments, qualified
government grants or awards, or a combination of such funding, during
the initial parole period;
* * * * *
(3) Reached at least $622,142 in annual revenue in the United
States and averaged 20 percent in annual revenue growth during the
initial parole period.
* * * * *
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-16138 Filed 7-24-24; 8:45 am]
BILLING CODE 9111-97-P
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