Proposed Rule Again Tests Limits of USCIS 'Discretion'

U.S.Citizenship and Immigration Services (USCIS) is proposing a rule that relies on the agency’s parole authority to give foreign nationals temporary permission to be in the United States to “start or scale their businesses.” Current law allows USCIS to use parole authority in dire, individual humanitarian cases, not to benefit broad categories of beneficiaries. As such the proposal, like the court-blocked DAPA/extended DACA amnesty, directly challenges the limits of agency discretion under immigration law.

The advance version of the notice of proposed rulemaking says DHS can parole, on a case-by-case basis, foreign nationals:

• “Who have…ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
• Whose startup was formed in the United States within the past three years; and
• Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
• Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
• Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
• Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.”

Foreign nationals would be allowed to stay in the U.S. for two years and could apply for additional three-year periods “only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.” 

The Washington Times’ Stephen Dinan suggests the Administration “plans to use parole authority to go around normal rules and…(let) wealthy entrepreneurs buy their way in.” Dinan questions whether existing parole authority “is broad enough to cover this type of program” and notes “the Administration couldn’t point to any case where parole had been used to gain entry to the mainland U.S. strictly on future economic prospects.”

The proposal is similar in purpose to the fraud-ridden EB-5 visa program, which gives green cards to foreign nationals who invest as little as $500,000 in a new U.S. company. And like under EB-5, foreign nationals would only need a small commitment in the company (15% stake) to qualify, although some U.S. investment is required.

The p-roposal was released today, so Members of Congress have yet to challenge this new encroachment on their authority. Earlier this year, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Sen. Mike Lee, R-Utah, called out the Administration’s abuse of advance parole authority in granting a citizen path to illegal aliens with Deferred Action for Childhood Arrivals (DACA) status. If left unchallenged, the Administration could expand its use of parole authority for other classes of beneficiaries before Obama’s term expires.

https://www.numbersusa.com/news/proposed-rule-again-tests-limits-uscis-discretion

Mentions

• U.S. Citizenship and Immigration Services
• Chuck Grassley

States

• District Of Columbia