Sec. 4804. Permanent authorization of EB–5 Regional Center Program
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Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 ( 8 U.S.C. 1153 note) is repealed. Section 203(b)(5) ( 8 U.S.C. 1153(b)(5) ) is amended by adding at the end the following: Visas under this paragraph shall be made available to qualified immigrants participating in a program implementing this paragraph that involves a regional center in the United States, which has been designated by the Secretary of Homeland Security, in consultation with the Secretary of Commerce, on the basis of a general proposal for the promotion of economic growth, including— increased export sales; improved regional productivity; job creation; or increased domestic capital investment.
A regional center shall have jurisdiction over a defined geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning— the kinds of commercial enterprises that will receive investments from aliens; the jobs that will be created directly or indirectly as a result of such investments; and other positive economic effects such investments will have.
In determining compliance with subparagraph (A)(ii), the Secretary of Homeland Security shall permit aliens admitted under the program described in this subparagraph to establish reasonable methodologies for determining the number of jobs created by the program, including jobs estimated to have been created indirectly through— revenues generated from increased exports, improved regional productivity, job creation; or increased domestic capital investment resulting from the program, including jobs created outside of the geographic boundary of the regional center as a result of the immigrant’s investment in regional center-affiliated commercial enterprises.
The Secretary shall permit immigrants admitted under this paragraph to satisfy the requirements under subparagraph (A)(ii) with jobs that are estimated to be created indirectly through investment under this paragraph in accordance with this subparagraph. Before the filing of a petition under this subparagraph by an alien investor, a commercial enterprise affiliated with a regional center may file a petition with the Secretary of Homeland Security to preapprove a particular investment in the commercial enterprise, as provided in— a business plan for a specific capital investment project; investment documents, such as subscription, investment, partnership, and operating agreements; and a credible economic analysis regarding estimated job creation that is based upon reasonable methodologies.
The Secretary shall establish a process to facilitate the preapproval of business plans under this subparagraph related to investment in a regional center commercial enterprise, which shall include an opportunity for the applicant to address and cure any deficiencies identified by the Secretary in the applicant’s business plan, investment documents, or statement regarding job creation prior to a final determination. The Secretary shall impose a fee for the use of the process described in this clause sufficient to recover the costs of its administration.
The preapproval of a petition under this subparagraph shall be binding for purposes of the adjudication of petitions filed under this subparagraph by immigrants investing in the commercial enterprise unless the Secretary determines that there is evidence of fraud, misrepresentation, criminal misuse, a threat to national security, or other evidence affecting program eligibility that was not disclosed by the petitioner during the preapproval process. The Secretary may establish a premium processing option for alien investors who are investing in a commercial enterprise that has received preapproval under this subparagraph and may impose a fee for the use of that option sufficient to recover all costs of the option.
The Secretary shall consider the potential for fraud, misrepresentation, criminal misuse, and threats to national security in establishing eligibility criteria for any program the Secretary may establish under this subparagraph. Each regional center designated under subparagraph
(E)shall annually submit, to the Director of U.S. Citizenship and Immigration Services (referred to in this subparagraph as the Director ), in a manner prescribed by the Secretary of Homeland Security, financial statements, including— an accounting of all foreign investor money invested through the regional center; and for each capital investment project— an accounting of the aggregate capital invested through the regional center or affiliated commercial enterprises by immigrants under this paragraph; a description of how such funds are being used to execute the approved business plan; evidence that 100 percent of such investor funds have been dedicated to the project; detailed evidence of the progress made toward the completion of the project; an accounting of the aggregate direct and indirect jobs created or preserved; and a certification by the regional center that such statements are accurate. If the Director determines that a financial statement required under clause
(i)is deficient, the Director may require the regional center to amend or supplement such financial statement. If the Director determines, after reviewing the financial statements submitted under clause (i), that a regional center, director, or other individual involved with a regional center (other than an alien investor) has violated any requirement under clause
(i)or that the regional center is conducting itself in a manner inconsistent with its designation, the Director may sanction the violating entity or individual under subclause (II). The Director shall establish a graduated set of sanctions for violations referred to in subclause (I), including— fines equal to not more than 5 percent of the total capital invested by immigrant investors in the commercial enterprise’s approved business plan; temporary suspension from participation in the program described in subparagraph (E), which may be lifted by the Director if the individual or entity cures the alleged violation after being provided such an opportunity by the Director; permanent bar from program participation for 1 or more individuals affiliated with the regional center; and termination of regional center status. No person shall be permitted by any regional center to be involved with the regional center as its principal, representative, administrator, owner, officer, board member, manager, executive, general partner, fiduciary, marketer, promoter, or other similar position of substantive authority for the operations, management or promotion of the regional center if the Secretary of Homeland Security— determines such person has been found liable within the previous 5 years for any criminal or civil violation of any law relating to fraud or deceit, or at any time if such violation involved a criminal conviction with a term of imprisonment of at least 1 year or a criminal or civil violation of any law or agency regulation in connection with the purchase or sale of a security; or knows or has reasonable cause to believe that the person is engaged in, has ever been engaged in, or seeks to engage in any— illicit trafficking in any controlled substance; activity relating to espionage or sabotage; activity related to money laundering (as described in section 1956 or 1957 of title 18, United States Code); terrorist activity (as defined in clauses
(iii)and
(iv)of section 212(a)(3)(B)); human trafficking or human rights offense; or violation of any statute, regulation, or Executive Order regarding foreign financial transactions or foreign asset control. The Secretary shall require such attestations and information, including, the submission of fingerprints to the Federal Bureau of Investigation, and shall perform such criminal record checks and other background checks with respect to a regional center, and persons involved in a regional center as described in clause (i), as the Secretary considers appropriate to determine whether the regional center is in compliance with clause (i). The Secretary may require the information and attestations described in this clause from such regional center, and any person involved in the regional center, at any time on or after the date of the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act . The Secretary is authorized, in his or her unreviewable discretion, to terminate any regional center from the program under this paragraph if he or she determines that— the regional center is in violation of clause (i); the regional center or any person involved with the regional center has provided any false attestation or information under clause (ii); the regional center or any person involved with the regional center fails to provide an attestation or information requested by the Secretary under clause (ii); or the regional center or any person involved with the regional center is engaged in fraud, misrepresentation, criminal misuse, or threats to national security. The Secretary of Homeland Security shall not approve an application for regional center designation or regional center amendment that does not certify that the regional center and, to the best knowledge of the applicant, all parties to the regional center are in, and will maintain, compliance with the securities laws of the United States. The Secretary shall terminate the designation of any regional center that does not provide the certification described in subclause
(i)on an annual basis. In addition to any other authority provided to the Secretary regarding the regional center program described in subparagraph (E), the Secretary may, in his or her unreviewable discretion, suspend or terminate the designation of any regional center if he or she determines that the regional center or any party to the regional center— is permanently or temporarily enjoined by order, judgment, or decree of any court of competent jurisdiction in connection with the purchase or sale of a security; is subject to any final order of the Securities and Exchange Commission that— bars such person from association with an entity regulated by the Securities and Exchange Commission; or constitutes a final order based on violations in connection with the purchase or sale of a security; or knowingly submitted or caused to be submitted a certification described in clause
(i)that contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. Nothing in this subparagraph may be construed to impair or limit the authority of the Securities and Exchange Commission under the Federal securities laws. For the purpose of this subparagraph, the term party to the regional center shall include the regional center, its agents, employees, and attorneys, and any persons in active concert or participation with the regional center. If the Secretary of Homeland Security determines, in his or her unreviewable discretion, that the approval of a petition, application, or benefit described in this subparagraph is contrary to the national interest of the United States for reasons relating to fraud, misrepresentation, criminal misuse, or threats to national security, the Secretary may deny or revoke the approval of— a petition seeking classification of an alien as an alien investor under this paragraph; a petition to remove conditions under section 216A before granting lawful permanent resident status or any other petition, application, or benefit based upon the previous or concurrent filing or approval of a petition for classification of an alien under this paragraph; or an application for designation as a regional center. . The Secretary of Commerce, upon the request of the Secretary, shall provide consultation assistance for determining whether— a proposed regional center should be designated, terminated, or subject to other adjudicative action; or a petitioner or applicant for a benefit under section 203(b)(5) of the Immigration and Nationality Act, as amended by subsection (b), has met the requirements under such paragraph with respect to job creation. The Secretary and the Secretary of Commerce may each adopt such rules and regulations as are necessary to carry out the consultation process provided for in paragraph (1). Nothing in this subsection shall be construed to require consultation with the Secretary of Commerce to continue the designation of a regional center approved before the date of the enactment of this Act. The amendments made by this section— shall be effective upon the enactment of this Act; and shall apply to— any application to designate a regional center, and any person involved with the regional center, that is pending or approved on or after the date of the enactment of this Act; and any regional center approved before the date of the enactment of this Act, on or after a delayed effective date that is 1 year after such date of enactment with respect to any person involved in the regional center on or after such delayed effective date.
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Sec. 4804
Permanent authorization of EB–5 Regional Center Program
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