On January 17, 2017, the Department of Homeland Security (DHS) published a final rule establishing a parole program for international entrepreneurs seeking to improve the ability of certain startup founders to remain in the United States legally in order to grow their companies and help create new jobs for U.S. workers.

On July 11, 2017, less than a week before the final rule was set to take effect, DHS delayed the implementation of the rule, foreshadowing that it would seek to rescind the rule altogether pursuant to an Executive Order (EO) signed by the President on January 25, 2017. To counter the rule’s delay and ultimate rescission, entrepreneurs, startup companies, and a trade association joined together to challenge this action by DHS by filing a lawsuit in federal court.

The plaintiffs in the lawsuit—led by the National Venture Capital Association—consist of prospective entrepreneurs, or companies founded by these entrepreneurs, who had hoped to be able to take advantage of the new program in order to oversee their startup companies and ensure the overall success of their businesses in the United States. The plaintiffs argued that without other existing legal visa options for them they will be forced to close their businesses’ doors and take their job opportunities elsewhere.

On December 1, 2017, Federal Judge James E. Boasberg of the U.S. District Court for the District of Columbia ruled in favor of the plaintiffs stating that the U.S. Department of Homeland Security (DHS) had violated the Administrative Procedure Act (APA) by not soliciting comments from the public before expressing their desire to rescind the program.

Consequently, DHS must begin accepting applications from foreign entrepreneurs who meet the program’s requirements.

If you or somebody you know thinks they may be eligible to take advantage of this program, you should act fast to contact competent counsel as, even with this temporary reprieve, DHS has made clear their intent to ultimately do away with this program upon termination of the required notice and comment period.