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.

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. The final rule was to be effective July 17, 2017.

On July 11, 2017, DHS published a rule delaying the effective date to March 14, 2018. 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.

The regulatory provisions established by the January 17, 2017 rule, which were implemented after the delay rule was vacated on December 1, 2017, provide specific investment and revenue amounts that can support an application for parole and re-parole. 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 www.uscis.gov 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.

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 amounts beginning in FY 2022. 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.

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:

• Received at least $528,293 in qualifying investments, qualified government grants or awards, or a combination of such funding, during the initial parole period;
• Created at least 5 qualified jobs with the start-up entity during the initial parole period; or
• 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 § 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, https://www.uscis.gov/working-in-the-united-states/entrepreneur-employment-pathways/nonimmigrant-or-parole-pathways-for-entrepreneur-employment-in-the-united-states.

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. 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. 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) provides that an applicant may be considered for re-parole if they establish that during the initial parole period, their entity:

• Received at least $622,142 in qualifying investments, qualified government grants or awards, or a combination of such funding, during the initial parole period;
• Created at least 5 qualified jobs with the start-up entity during the initial parole period; or
• 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.

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 § 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. 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.

The revised amounts in this final rule will be posted on the USCIS website, https://www.uscis.gov.

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 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.

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.” 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.

D. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) 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). 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.

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 and “Instruction Manual 023-01-001-01 Revision 01, (Instruction Manual) establish the policies and procedures DHS and its component agencies use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations for implementing NEPA.

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. Appendix A of the Instruction Manual- lists the DHS Categorical Exclusions. 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.

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

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.

2. In § 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: