Judge Overturns DHS Delay of International Entrepreneur Rule

Foreign entrepreneurs who want to build innovative companies in the U.S. received good news last week when United States District Judge James E. Boasberg of the U.S. District Court for the District of Columbia ruled in favor of a lawsuit filed by the National Venture Capital Association (NVCA), entrepreneurs and startup companies on September 19, 2017 challenging the Department of Homeland Security’s (DHS) delay of the International Entrepreneur Rule (IER).  With this ruling, DHS is now compelled to dispense with its delay and begin accepting applications of foreign entrepreneurs who wish to come or stay in the U.S. to grow their companies. 

“Today marks a significant victory for talented foreign entrepreneurs, the entrepreneurial ecosystem and the U.S. economy.  The facts speak for themselves—the U.S. economy has long thrived on the contributions and innovations of immigrant entrepreneurs and we are a better country as a result,” said Bobby Franklin, President and CEO of NVCA.  “Implementation of the International Entrepreneur Rule is a commonsense approach to attracting the world’s best and brightest entrepreneurs to start and grow the next generation of successful American companies and we are committed to working with DHS to ensure it is implemented to its fullest potential.”

Finalized by the Obama Administration, the rule allows foreign-born entrepreneurs to travel to or stay in the U.S. to grow their companies for two and a half years with the possible extension of another two and a half years.  Less than a week before the IER was to go into effect on July 17, 2017, DHS announced that the rule would be delayed and that DHS intended to rescind the final rule.  Represented by the American Immigration Council and Mayer Brown LLP, NVCA and the other plaintiffs argued that the because DHS did not solicit advance comment from the public on the delay, it violated clear requirements of the Administrative Procedure Act and as a result the U.S. economy would miss out on the economic activity that would have been generated as result of these new businesses.

"This decision is an important reminder that this administration must comply with the law and allow the public to have a voice during the agency rulemaking process.  It's also great news for the talented entrepreneurs who relied on this rule and may now come to the United States to grow their businesses and the American economy," said Leslie K. Dellon, Staff Attorney, American Immigration Council.

“The Court’s order confirms that, while administrations may change, basic legal requirements ensure agency transparency, guarantee public participation, and prevent reactionary, ill-considered policy changes,” noted Paul Hughes, Partner at Mayer Brown and lead counsel for the plaintiffs.


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