International Entrepreneur Program: Automatic Increase of Investment and Revenue Amount Requirements
| Published date | 13 September 2021 |
| Citation | 86 FR 50839 |
| Record Number | 2021-19603 |
| Section | Rules and Regulations |
| Court | Homeland Security Department |
Federal Register, Volume 86 Issue 174 (Monday, September 13, 2021)
[Federal Register Volume 86, Number 174 (Monday, September 13, 2021)]
[Rules and Regulations]
[Pages 50839-50842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19603]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 212
[CIS No. 2699-21; DHS Docket No.: USCIS-2021-0018]
RIN 1615-AC75
International Entrepreneur Program: 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 entrepreneurs of start-up entities who can demonstrate
through evidence of substantial and demonstrated potential for rapid
business growth and job creation that they would provide a significant
public benefit to the United States. The 2017 regulation provided that
the investment and revenue amount requirements would automatically
adjust every three years by the Consumer Price Index for All Urban
Consumers (CPI-U). DHS is issuing this rule to inform the public of the
increased amounts that will take effect at the start of Fiscal Year
2022 and to revise the regulations to accurately reflect the updated
investment amounts.
DATES: This final rule is effective on October 1, 2021.
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). Individuals with hearing or speech impairments may access
the telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
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
stated that the investment and revenue amounts will be
[[Page 50840]]
automatically adjusted every 3 years by the CPI-U and posted on the
USCIS website at www.uscis.gov and 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\ The regulatory text stated that USCIS would provide notice
of the automatic adjustments in the Federal Register and on its
website prior to the beginning of the fiscal year in which the
change would take effect. 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 would be more
manageable operationally for DHS and less burdensome to applicants.
See, generally, 81 FR 60129 (Aug. 31, 2016).
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B. Investment and Revenue Increase for Fiscal Year 2022
The automatic adjustment required by 8 CFR 212.19(l) affects the
amounts stated in 8 CFR 212.19(a)(5) (no less than $600,000 in
aggregate investments by the qualifying investor and at least $500,000
in revenue by at least two entities), (b)(2)(ii)(B) (at least $250,000
in investments or at least $100,000 in government awards or grants),
and (c)(2)(ii)(B) (at least $500,000 in additional investment or
revenue). DHS has calculated the new investment and revenue amounts and
revised the applicable provisions in this final rule.\8\ According to
the CPI-U Calculator available from the Department of Labor's website,
https://www.bls.gov/data/inflation_calculator.htm, $100,000 in December
2017 had a present dollar value of $105,659 in December 2020 (Fiscal
Year 2021), three years later. The same calculator reflects $250,000 in
December 2017 had a present dollar value of $264,147 in December 2020,
that $500,000 in December 2017 had a present dollar value of $528,293
in December 2020, and that $600,000 in December 2017 had a present
dollar value of $633,952 in December 2020. In light of these automatic
adjustments in December 2020, beginning in Fiscal Year 2022, under 8
CFR 212.19(b)(2)(ii)(B) as updated by this final rule, an applicant may
be considered for initial parole if he or she demonstrates that his or
her 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.\9\ 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.\10\ Similarly, revised 8 CFR
212.19(c)(2)(ii)(B) provides that an applicant may be considered for
re-parole if he or she establishes that during the initial parole
period, his or her entity:
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\8\ DHS rounded these amounts to the nearest dollar.
\9\ 8 CFR 212.19(b)(2)(ii)(B).
\10\ 8 CFR 212.19(b)(2)(iii).
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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.\11\
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\11\ 8 CFR 212.19(c)(2)(ii)(B).
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In the alternative, an applicant who partially meets one or more of
the criteria in paragraph (c)(2)(ii)(B) of this section may 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 $633,952 in a 5-year period and at least two of
those entities 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 this final rule are also posted on the USCIS
website https://www.uscis.gov.
II. Statutory and Regulatory Requirements
A. 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 and contrary to the public interest because the rule has
no substantive impact and 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.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 603(b)), 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., a regulatory flexibility
analysis is not required under the RFA.
C. 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 or final agency 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. The
inflation-adjusted value of $100 million in 1995 is approximately $170
million in 2020 based on the Consumer Price Index for All Urban
Consumers (CPI-U).\12\ This final rule does not
[[Page 50841]]
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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\12\ See U.S. Department of Labor, Bureau of Labor Statistics,
``Historical Consumer Price Index for All Urban Consumers (CPI-U):
U.S. city average, all items, by month,'' available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202103.pdf (last visited May 5, 2021). Calculation of inflation: (1)
Calculate the average monthly CPI-U for the reference year (1995)
and the current year (2019); (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 2020-Average monthly
CPI-U for 1995)/(Average monthly CPI-U for 1995)] * 100 = [(258.811-
152.383)/152.383] * 100 = (106.428/152.383) *100 = 0.6984 * 100 =
69.84 percent = 70 percent (rounded). Calculation of inflation-
adjusted value: $100 million in 1995 dollars * 1.70 = $170 million
in 2020 dollars.
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D. Executive Order 12866
This action does not require review by the Office of Management and
Budget (OMB) under Executive Orders 12866 and 13563. As previously
discussed, DHS has the authority to adjust the investment and revenue
amount requirements according to the CPI-U.
The population that may be affected by this rule are the applicants
that file for Form I-941, Application for Entrepreneur Parole, after
this rule becomes effective. Table A presents the historical annual
receipts for Form I-941 received for Fiscal Years 2018 through 2021.
During this period, 41 total Form I-941 applications have been filed
with USCIS, and DHS estimates that an annual average of 11 Form I-941
applications were received by USCIS.
Table A--Annual Receipts for Form I-941, Application for Entrepreneur Parole, for Fiscal Years FY18-FY21 13
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4-Year annual
Form 2018 2019 2020 2021 Total average
receipts
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Form I-941........................................ 20 7 1 13 41 11
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Source: USCIS, Immigrant Program Office, Claims 3 (C3) database (as of August 17, 2021).
E. Executive Order 13132 (Federalism)
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\13\ Data covering the period December 2017-August 12, 2021.
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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. 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 final rule will revise USCIS Form I-941.
The information collected through the I-941 is used by USCIS to assist
in determining if an applicant is eligible for discretionary grant of
parole under 8 CFR 212.19. As provided under 5 CFR 1320.13, USCIS is
requesting emergency processing for this collection of information as
specified in the Paperwork Reduction Act and its implementing
regulations. USCIS certifies that the requirements of 5 CFR 1320.13(a)
are met and that:
The collection of information is needed immediately and is
essential to the mission of the agency.
The use of normal clearance procedures is reasonably
likely to prevent or disrupt the collection of information.
Overview of this information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Entrepreneur
Parole.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-941; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households.
Entrepreneurs can use this form to make an initial request for parole
based upon significant public benefit; make a subsequent request for
parole for an additional period; or file an amended application to
notify USCIS of a material change.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-941 is
2,940 and the estimated hour burden per response is 4.7 hours. The
estimated total number of respondents for the biometric processing is
2,940 and the estimated hour burden per response is 1.17 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 17,258 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $1,440,600.
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 part 212 of
title 8 of the Code of Federal Regulations (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, 1187, 1223, 1225, 1226, 1227, 1255,
1359; section 7209 of Pub. L. 108-458 (8 U.S.C. 1185 note); Title
VII of Pub. L. 110-229 (8 U.S.C. 1185 note); 8 CFR part 2; Pub. L.
115-218.
* * * * *
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
[[Page 50842]]
commonly used in financing transactions within their respective
industries comprising a total in such 5-year period of no less than
$633,952; 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 $528,293 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 $264,147 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 $105,659
through one or more qualified government awards or grants.
* * * * *
(c) * * *
(2) * * *
(ii) * * *
(B) * * *
(1) Received at least $528,293 in qualifying investments, qualified
government grants or awards, or a combination of such funding, during
the initial parole period;
* * * * *
(3) 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.
* * * * *
Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2021-19603 Filed 9-10-21; 8:45 am]
BILLING CODE 9111-97-P
