Megan Kludt Esq. Comments on the Proposed Startup Immigration Rule

Megan Kludt comments on the proposed immigration rule aimed at entrepreneurs (NYT article below).

This proposal (see article below) is very exciting. We have not seen anything quite like this before. The proposed rule would allow start-up founders “parole” into the United States to create jobs and build their companies.

Like the DACA program, this entrepreneur program is an end-run around Congressional legislation; the program would be under the authority already given to the president to grant “parole” for humanitarian reasons or a significant public benefit. While the program would be phenomenal for foreign entrepreneurs, we can expect some hurdles before applicants can start using it. First, it is currently just in the proposal stage. It is unlikely that the proposal will be approved and put into effect by the end of this presidential term, so the choice of next president may affect how the program is implemented, if at all. Second, we could see litigation as we did in with the recent DAPA program and the proposed expansion of DACA. The Supreme Court did not rule on whether DAPA was constitutional because it was a 4/4 split. However, one of the arguments in that law suit was that the president was exceeding his authority by creating sweeping new legalization programs without Congressional support. The same argument could be made here. Another concern is that this program would be entirely at the discretion of the Department of Homeland Security, which means that it would be subject to the whim of whichever president is in office.

That said, this proposal creates the framework for a much needed change to our immigration system as it applies to entrepreneurs and I am optimistic. It is refreshingly responsive to the current business needs of the United States. It sets down measurable criteria for an entrepreneur immigrant category, which we have never had before. It also acknowledges the vital role of start-up incubators, which is great news for participants in Columbia’s Entrepreneurship program. 

Megan Kludt is an associate attorney at Curran and Burger where she specializes in complex immigration cases in the areas of business, academia, scientific research, and the arts.  She will be holding office hours for Columbia-affiliated founders with immigration questions.  For more information contact .  

U.S. Proposes Immigration Rule Aimed at Entrepreneurs

New York Times By STACY COWLEY AUGUST 26, 2016

Foreign entrepreneurs building new companies in the United States could soon gain a new immigration option that would grant them temporary entry for up to five years, under a rule proposed on Friday by the Department of Homeland Security.

The proposal, which does not require congressional approval, would allow immigration officials to admit entrepreneurs case by case. To qualify, an applicant must have an “active and central role,” and a significant ownership stake, in an American company founded in the last three years.

The move is one of many piecemeal efforts by the Obama administration to expand America’s immigration policies without action from Congress. Entrepreneurs in any industry would be eligible to apply, but the new rule would be especially significant for the technology field. Creating an immigration route for start-up founders has been one of Silicon Valley’s political priorities.

“This is a big step in the right direction,” said Patrick Collison, an Irish immigrant and the chief executive of Stripe, a payment processing company based in San Francisco. “I think it will have major impact on U.S. entrepreneurship, and potentially on the broader economy.”  [Rest of Story]

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