New USCIS Guidance Highlights the Problem with Categorical Parole

By Elizabeth Jacobs on April 12, 2023

On April 11, 2023, the Center for Immigration Studies (CIS) submitted a comment to a recent Policy Manual update from U.S. Citizenship and Immigration Services (USCIS) which implements the International Entrepreneur Parole program (IEPP). The parole program was originally created under the Obama administration in 2017 to establish criteria for the use of parole with respect to entrepreneurs of start-up entities that can demonstrate sufficient potential for rapid growth and job creation and that they would provide a significant public benefit to the United States.

While CIS strongly supports adjusting U.S. immigration policy to a merit-based immigration system, CIS explained that the creation of a categorical parole program directly conflicts with statute and Congress’ intent to limit DHS’s use of parole to infrequent and exceptional circumstances. Moreover, the program diverts agency resources from legitimate visa programs, many of which have experienced historic processing times and delays. Accordingly, CIS urged DHS to terminate IEPP and all corresponding policy guidance.

IEPP Is an Abuse of Parole. The parole program is premised on an expansive interpretation of DHS’s parole authority, which directly conflicts with the language and increasingly restrictive history of the parole statute. Specifically, INA § 212(d)(5) only permits the secretary limited discretion to parole aliens into the United States temporarily, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit.

While DHS claims that each determination for IEPP will be made on a case-by-case basis, the Policy Manual update lays out specific requirements (consistent with the 2017 regulation) that applicants must meet in order to qualify for parole under IEPP. IEPP requires complex adjudications based on highly structured eligibility criteria that have not been authorized by Congress.

IEPP Interferes with the Scheme Congress Created to Permit Entrepreneurs to Enter and Work in the United States. CIS reminded DHS that Congress, not the executive branch, has plenary authority over immigration and has already created at least four other visa programs that are available for entrepreneurs to enter and work in the United States, as my colleague David North has explained. These programs include: the EB-5 investor program, which provides lawful permanent residency to investors and their close relatives who create or preserve at least 10 jobs for American citizens; the E-2 Treaty Investor program, which provides nonimmigrant visas to aliens (and their immediate relatives) who open a business in the United States; the L-1 nonimmigrant visa classification, which allows the transfer of an executive or manager from an affiliated foreign office to one in the United States; and the H-1B nonimmigrant visa program, which allows high-skilled aliens to work in specialty occupations in the United States.

IEPP Diverts Limited Agency Resources Away from Authorized Immigration Programs. Even with the inclusion of an application fee, DHS determined in 2018 that implementation of the program will require “significant resources to hire and train additional adjudicators with specific technical expertise, modify intake and case management information technology systems, revise application and fee intake contracts, develop guidance for the adjudicators, and communicate with the public about these changes”. Given the substantial fee increases and workforce enhancements USCIS has proposed for fiscal years 2023-2024, CIS believes these resources would be better focused on implementing programs Congress has authorized or mandated and carrying out initiatives to better deter and detect fraud and abuse.

Only Congress has the legal authority to designate a new category of aliens as eligible to enter the United States for the purpose of starting businesses using venture capital or other U.S.-sourced funding, and has repeatedly considered and rejected legislation that would have established similar visa programs for entrepreneurs. While the existing visa classifications may not encompass the entire population of entrepreneurs addressed in IEPP, DHS must recognize the limits established by Congress, which is uniquely qualified to balance the many competing and complex policy priorities in attracting and retaining foreign entrepreneurs.

Read the full comment here.