June 28, 2018 Ms. Samantha Deshommes Chief, Regulatory Coordination Division Office of Policy and Strategy U.S. Citizenship and Immigration Services Department of Homeland Security 20 Massachusetts Avenue NW Washington, DC 20529 Submitted via: www.regulations.gov Re: Removal of International Entrepreneur Rule 83 Fed. Reg. 24415 (May 29, 2018) DHS Docket No. USCIS-2015-0006 Dear Madam or Sir: The American Immigration Lawyers Association (AILA) and the American Immigration Council (Immigration Council) respectfully submit the following comments in response to the Department of Homeland Security (DHS) Notice of Proposed Rulemaking (NPRM), Removal of International Entrepreneur Rule, published in the Federal Register on May 29, 2018.1 Established in 1946, AILA is a voluntary bar association of more than 15,000 attorneys and law professors practicing, researching and teaching in the field of immigration and nationality law. Our mission includes the advancement of the law pertaining to immigration and nationality and the facilitation of justice in the field. AILA members regularly advise and represent businesses, U.S. citizens, U.S. lawful permanent residents, and foreign nationals regarding the application and interpretation of U.S. immigration laws. The American Immigration Council is a non-profit organization established to increase public understanding of immigration law and policy, advocate for the fair and just administration of our immigration laws, protect the legal rights of noncitizens, and educate the public about the enduring contributions of America’s immigrants. The Immigration Council has played an instrumental role in highlighting the important economic contributions of immigrants at the local and federal levels. In addition, through its work on the economic benefits of immigration reform, the Immigration Council has helped to establish baseline standards for understanding the 1 83 Fed. Reg. 24415 (May 29, 2018). 1 AILA Doc. No. 18062902. (Posted 6/29/18) important role immigration plays in shaping and driving a twenty-first century American economy. Introduction U.S. history is full of immigrant success stories that confirm how you come to the United States is less important than what you accomplish once you arrive.2 No less than 43 percent of Fortune 500 companies were founded or co-founded by an immigrant or the child of an immigrant, and that figure rises to 57 percent among the Fortune 500 Top 35.3 In Silicon Valley, more than half of new tech start-up companies were founded by foreign-born individuals.4 Some of the most prominent immigrants who have launched successful U.S.-based businesses include Arianna Huffington (Huffington Post), Pierre Omidyar (eBay), Sergey Brin (Google), Elon Musk (Tesla, SpaceX), Jerry Yang (Yahoo), Hamdi Ulukaya (Chobani), and Jan Koum (WhatsApp). John Tu, founder of Kingston Technology and number 87 on the Forbes 400 list, immigrated to the United States and started a billion-dollar company that has created thousands of jobs for U.S. citizens.5 Immigrants make a significant positive economic impact at the local and regional level as well, reviving declining towns with new businesses, driving workforce growth, and filling high-skilled jobs that are vital to local economies.6 Unfortunately, although these immigrant entrepreneur success stories are impressive, they are the exception, rather than the rule. When it comes to options for welcoming entrepreneurs to our shores and competing in the global marketplace, our immigration laws fall far short. The International Entrepreneur Rule (IER) fills this undeniable void. Entrepreneurs are responsible for contributing tremendous wealth to the U.S. economy and creating American jobs.7 Thus, encouraging foreign entrepreneurs to establish new businesses in the United States is an essential component of a strong U.S. economy and workforce.8 DHS estimated that close to 3,000 entrepreneurs would be eligible for parole under the IER each year.9 2 See Erin Blakemore, These Iconic Figures of American History Were All Immigrants, TIME (Nov. 12, 2015), http://time.com/4108606/history-american-immigrants/. 3 Ian Hathaway, Almost Half of Fortune 500 Companies Were Founded by American Immigrants or Their Children, BROOKINGS (Dec. 4, 2017), https://www.brookings.edu/blog/the-avenue/2017/12/04/almost-half-of-fortune-500- companies-were-founded-by-american-immigrants-or-their-children/. 4 Darrell M. West, Creating a ‘Brain Gain’ for U.S. Employers: The Role of Immigration, BROOKINGS (Jan. 2011), https://www.brookings.edu/wp-content/uploads/2016/06/01_immigration_west.pdf. 5 Stuart Anderson, Family Immigration Led to John Tu’s Billion Dollar Company, FORBES (Dec. 19, 2017), https://www.forbes.com/sites/stuartanderson/2017/12/19/family-immigration-led-to-john-tus-billion-dollar- company/#6b9f4eb765c1. 6 See e.g., New Americans and a New Direction: The Role of Immigrants in Reviving the Great Lakes Region, NEW AMERICAN ECONOMY (Oct. 2017), http://research.newamericaneconomy.org/report/new-americans-and-a-new- direction-the-role-of-immigrants-in-reviving-the-great-lakes-region/. 7 See Tim Kane, The Importance of Startups in Job Creation and Job Destruction, EWING MARION KAUFFMAN FOUNDATION (July 2010), http://www.kauffman.org/what-we-do/research/firm-formation- and-growth-series/the-importance-of-startups-in-job-creation-and-job-destruction (finding that without startups, there would be no net job growth in the U.S. economy). 8 See Stuart Anderson, Immigrants and Billion Dollar Startups, NATIONAL FOUNDATION FOR AMERICAN POLICY (Mar. 2016), http://nfap.com/wp-content/uploads/2016/03/Immigrants-and-Billion-Dollar- Startups.NFAP-Policy-Brief.March-2016.pdf (finding that immigrant entrepreneurs have a track record of success in creating American powerhouses, such as Intel, eBay, and Tesla, and “have started more than half (44 of 87) of America’s startup companies valued at $1 billion or more.”). 9 82 Fed. Reg. 5238, 5242 (Jan. 17, 2017). 2 AILA Doc. No. 18062902. (Posted 6/29/18) In terminating the IER, DHS is turning its back on an opportunity to create a significant number of new jobs for Americans. New American Economy (NAE) estimates that if allowed to remain in place, the IER would be responsible for creating a minimum of 135,240 new jobs over the course of ten years.10 Using DHS’s own estimate that approximately 85 percent of IER companies would be technology/STEM-related, NAE finds that net job creation over the course of ten years is likely to be much higher than the minimum projection and could rise as high as 429,714 jobs.11 In addition, recognizing that “jobs are not created in a bubble” and that each newly employed individual “creates additional economic activity that creates even more economic activity as the demand for goods and services triggers increases in demand for other goods and services,” NAE estimates the IER would inject anywhere from $5.8 billion to $18.5 billion into the U.S. economy over 10 years.12 Until our laws are reformed to provide flexibility for entrepreneurs and reflect modern business practices, DHS should maintain the IER to provide a much-needed opportunity within our existing legal structure to attract and retain foreign entrepreneurs and create jobs for U.S. workers. The IER is a temporary means for foreign entrepreneurs to concentrate on growing their businesses while potentially becoming eligible for a longer-term or permanent visa option that would allow them to continue running their businesses in the United States well into the future. Our comments to the IER as it was initially proposed were intended to make it more practical for entrepreneurs to qualify, and we were pleased that the Final Rule reflected some of our recommendations. We submit these comments in support of the continuation of parole to facilitate international entrepreneurship to grow our nation’s economy. As these comments reflect, we support the retention of the IER. The International Entrepreneur Rule is Consistent with the Immigration and Nationality Act’s Parole Authority under INA §212(d)(5)(A) The IER falls squarely within the scope of DHS’s parole authority at INA §212(d)(5)(A). In the current NPRM, DHS “stands by its previous findings that foreign entrepreneurs make substantial and positive contributions to innovation, economic growth, and job creation in the United States.”13 However, the agency then contradicts this by rejecting its prior determination that “allowing certain qualified entrepreneurs to come to the United States as parolees on a case- by-case basis would produce a significant public benefit” through these contributions.14 Additionally, DHS now erroneously contends that the IER is an “extraordinary use of the Secretary’s parole authority, prescribing specific, detailed eligibility criteria and requiring exceptionally complex adjudications.”15 The Supreme Court repeatedly has made clear, however, that—absent an express Congressional prohibition not present here—an agency granted authority 10 See Opportunity Lost: The Cost of Rescinding the International Entrepreneur Rule, NEW AMERICAN ECONOMY (June 2018), https://research.newamericaneconomy.org/report/opportunity-lost-the-cost-of-rescinding-the- international-entrepreneur-rule/. 11 Id. at 4. 12 Id. at 5-6. 13 83 Fed. Reg. at 24416. 14 Id. at 24416-17 (quoting at 24416 from 81 Fed. Reg. at 60136). 15 Id. at 24416. 3 AILA Doc. No. 18062902. (Posted 6/29/18) to make individualized case-by-case determinations may establish eligibility criteria by regulation. This is precisely what the IER does. In Heckler v. Campbell, the U.S. Supreme Court rejected the argument that the Secretary of Health and Human Services could not, by regulation, establish a methodology for determining if work existed when deciding if a person qualified for disability benefits.16 The Court stated: It is true that the statutory scheme contemplates that disability hearings will be individualized determinations based on evidence adduced at a hearing. [Statutory citations omitted.] But this does not bar the Secretary from relying on rulemaking to resolve certain classes of issues.