Sec. 201. EB–5 employment creation investor program
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Section 203(b)(5) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5) ) is amended by adding at the end the following: Of the visas otherwise available under this paragraph, the Secretary of State, together with the Secretary of Homeland Security, shall set aside at least 5,000 visas for a program involving regional centers designated by the Secretary of Homeland Security, on the basis of a general proposal, for the promotion of economic growth, including improved regional productivity, job creation, or increased domestic capital investment.
A regional center shall have jurisdiction over a specific 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 under this subparagraph may be based on general predictions, contained in the proposal, concerning the kinds of new commercial enterprises that will receive capital from aliens under this paragraph, the jobs that will be created (directly or indirectly) as a result of such capital investments and the other positive economic effects such capital investments will have.
In determining compliance with this subparagraph, and notwithstanding requirements applicable to investors not involving regional centers, the Secretary of Homeland Security, in consultation with the Secretary of Commerce, shall recognize reasonable methodologies for determining the number of jobs created by a designated regional center, including such jobs that are estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, or increased domestic capital investment resulting from the regional center.
The Secretary may consider estimated job creation outside the geographic boundary of a designated regional center if such estimate is supported by substantial evidence and constitutes no more than 50 percent of the overall number of jobs estimated to be created by such regional center. The Secretary of Homeland Security shall establish a preapproval procedure that— allows a regional center to apply to the Secretary for approval of a particular investment offering through a new commercial enterprise before any alien files a petition for classification under this paragraph by reason of investment in the new commercial enterprise; in considering an application under subclause (I), requires that the Secretary make final decisions on all issues under this paragraph other than those issues unique to an individual investor in the new commercial enterprise; and requires that the Secretary eliminate the need for the repeated submission of documentation that is common to multiple petitions for classification under this paragraph through a regional center.
In addition to any other fees authorized by law, the Secretary of Homeland Security shall impose a fee to apply for designation as an EB–5 regional center under this paragraph. Fees collected under this paragraph shall be deposited in the Treasury in accordance with section 286(y). The Secretary shall perform site visits on a random basis of not less than 5 percent of all approved regional center capital investment projects each fiscal year. Each regional center designated under subparagraph
(E)shall annually submit, to the Director of United States Citizenship and Immigration Services (referred to in this subparagraph as the Director ), in a manner prescribed by the Secretary of Homeland Security, statements, including— a description of any pending litigation or bankruptcy proceedings or litigation or bankruptcy proceedings resolved during the preceding fiscal year, involving the regional center or an associated commercial enterprise; an accounting of all foreign investor money invested in the regional center or its associated commercial enterprises; and for each associated commercial enterprise— an accounting of the aggregate capital invested in the associated commercial enterprise by immigrants under subparagraph
(E)for each capital investment project being undertaken by the associated commercial enterprise; a description of how such capital is being used to execute each capital investment project in the approved business plan; evidence that 100 percent of such capital has been irrevocably committed to each capital investment project; detailed evidence of the progress made toward the completion of the capital investment project; an accounting of the aggregate direct and indirect jobs created or preserved; for all fees collected from alien entrepreneurs by any party in connection with the associated commercial enterprise, including administrative, loan monitoring, or loan management fees— a description of all fees collected; a list of the entities that received such fees; and the purpose for which such fees were collected; and a certification by the regional center that such statements are accurate. For purposes of this paragraph, the term associated commercial enterprise means any for-profit entity that associates with a regional center and receives, or is established to receive, capital investment under the regional center program described in subparagraph (E). If the Director determines that an annual statement submitted pursuant to clause
(i)is deficient, the Director may require the regional center to amend or supplement such annual statement. If a regional center fails to submit an annual statement or if the Director determines— that a statement submitted pursuant to this subparagraph is materially inaccurate or insufficient; 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, the payment of which shall not in any circumstance utilize any of such alien entrepreneurs’ capital investment; 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 involved with the regional center; and termination of regional center status. No person shall be permitted by any regional center or associated commercial enterprise to be involved with the regional center or associated commercial enterprise 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. For the purposes of this paragraph, a person is considered to be involved with a regional center or an associated commercial enterprise if he or she is the principal, representative, administrator, owner, officer, board member, manager, executive, general partner, fiduciary, marketer, promoter, director, or other similar position of substantial authority for the operations, management, or promotion of the regional center or associated commercial enterprise, respectively. No person may be directly or indirectly involved with a regional center unless the person is a national of the United States or an individual who has been lawfully admitted for permanent residence. No foreign government entity may be directly or indirectly associated with the ownership or administration of a regional center. 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 or associated commercial enterprise, as described in clause (i), as the Secretary considers appropriate to determine whether the regional center or associated commercial enterprise is in compliance with clause (i). The Secretary may require the information and attestations described in this clause from such regional center or associated commercial enterprise, and any person involved in the regional center or associated commercial enterprise, at any time on or after the date of the enactment of the EB-JOBS Act of 2015 . A regional center must provide a certification on an annual basis that it remains in compliance with clauses
(i)and (iii). The Secretary shall terminate any regional center from the program that fails to provide a certification as required under clause (v). The Secretary may terminate any regional center from the program under this paragraph if he or she determines that— the regional center or associated commercial enterprise has violated clause (i); the regional center is in violation of clause (iii); the regional center or associated commercial enterprise or any person involved with the regional center or associated commercial enterprise has provided any false attestation or information under clause (iv); or the regional center or associated commercial enterprise or any person involved with the regional center or associated commercial enterprise fails to provide an attestation or information requested by the Secretary under clause (iv). 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. In furtherance of the certification described in clause (i), the regional center shall be required to monitor and supervise all offers and sales of securities which are made by associated commercial enterprises to ensure compliance with the securities laws of the United States, and to maintain records, data, and information relating to all such offers and sales of securities. The Secretary shall terminate the designation of any regional center that does not provide the certification described in clause
(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 the Secretary’s 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 offer, 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 offer, 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 means— the regional center or associated commercial enterprise; the regional center or associated commercial enterprise’s owners, officers, directors, managers, partners, agents, employees, promoters, and attorneys; and any person in active concert or participation with the regional center or associated commercial enterprise or directly or indirectly controlling, controlled by, or under common control with the regional center or associated commercial enterprise. If the Secretary of Homeland Security determines that participation of the regional center in the program is contrary to the national interest of the United States, poses a threat to national security, or that the regional center or any person involved with the regional center is engaged or seeks to engage in any criminal or civil violation of any law relating to fraud, deceit, misrepresentation, or criminal misuse, the Secretary may— deny or revoke an approval of a regional center designation; terminate an approved regional center designation; deny or revoke a preapproval under section 203(b)(5)(E)(iii) of the Immigration and Nationality Act; deny or revoke a petition seeking classification of an alien as an alien investor under this paragraph; or deny a petition to remove conditions under section 216A. The Secretary of Homeland Security may delegate to the Secretary of Commerce authority and responsibility for determinations under sections 203(b)(5) and 216A (with respect to an alien entrepreneur who obtains status under section 203(b)(5)) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5) and 1186a), including determining whether an alien has met employment creation requirements. The Secretary of Homeland Security and the Secretary of Commerce may each adopt such rules and regulations as are necessary to carry out the delegation authorized under clause (i), including regulations governing the eligibility criteria for obtaining benefits pursuant to this subsection. Adjudication fees described in section 286(m) of the Immigration and Nationality Act ( 8 U.S.C. 1356(m) ) shall remain available until expended to reimburse the Secretary of Commerce for the costs of any determinations made by the Secretary of Commerce under clause (i). . Section 203(b)(5)(B) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(B) ) is amended as follows: In clause (i), to read as follows: Not less than 2,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who invest in a new commercial enterprise described in subparagraph
(A)which will create employment in an area described in clause (ii)(I). Not less than 4,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who invest in a new commercial enterprise described in subparagraph
(A)which will create employment in an area described in clause (ii)(II). Not less than 2,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who invest in a new commercial enterprise described in subparagraph
(A)which will create employment in an area described in subclause (III), (IV), or
(V)of clause (ii). Notwithstanding section 203(b)(1), any visa number made available by subclause (I), (II), or (III), and which has not been used at the end of the fiscal year in which it was made available, will remain available for qualified immigrants as described in each respective subclause. . In clause (ii), to read as follows: In this paragraph, the term targeted employment area means— a rural area; an area that has experienced high unemployment (of at least 150 percent of the national average rate) within the preceding 12 months; a county that has had a 20 percent or more decrease in population since 1970; an area that is within the boundaries established for purposes of a State or Federal economic development incentive program, including areas defined as Enterprise Zones, Renewal Communities and Empowerment Zones; or an area within the geographic boundaries of any military installation closed pursuant to a base closure law (as defined in section 101(a)(17) of title 10, United States Code). . In clause (iii), by striking within a metropolitan statistical area or . By adding after clause
(iii)the following: The term area that has experienced high unemployment means an area, comprising of one or more contiguous census tracts within one Core Based Statistical Area, that has an unemployment rate that is at least 150 percent of the national average unemployment rate, using the most recent census data available. . By adding at the end the following: In a case in which a geographic area is determined under clause
(ii)to be a targeted employment area, such determination shall remain in effect during the 5-year period beginning on the date of the determination for purposes of any alien seeking a visa reserved under this subparagraph. . Section 203(b)(5)(D) of such Act ( 8 U.S.C. 1153(b)(5)(D) ) is amended to read as follows: In this paragraph, the term permanent full-time employment means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position and which is expected to last for at least two years. Such employment may be satisfied on a full-time equivalent basis by calculating the number of full-time employees that could have been employed if the reported number of hours worked by part-time employees had been worked by full-time employees. Full-time equivalent employment shall be calculated by dividing the part-time hours paid by the standard number of hours for full-time employees. . Section 203(b)(5)(C) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(C) ) is amended by adding at the end the following: For purposes of this paragraph, the term capital does not include any assets acquired, directly or indirectly, by unlawful means. Effective for the first fiscal year that begins more than 6 months after the date of the enactment of this subclause, the amount specified in the first sentence of clause
(i)shall be $2,000,000. An increase described in the preceding sentence shall apply to aliens filing petitions under section 204(a)(1)(H) on or after the date on which the increase takes effect, unless the petition is filed by reason of an investment in a new commercial enterprise for which a preapproval under section 203(b)(5)(E)(iii) was filed before the date the increase takes effect. The amount described in subclause
(I)(as of the last increase to such amount) shall be increased every third year by the percentage (if any) by which the Consumer Price Index for the month of June preceding the date on which such increase takes effect exceeds the Consumer Price Index for the same month of the calendar year 3 years prior. An increase described in the preceding sentence shall apply to aliens filing petitions under section 204(a)(1)(H) on or after the date on which the increase takes effect, unless the petition is filed by reason of an investment in a new commercial enterprise for which a preapproval under section 203(b)(5)(E)(iii) was filed before the date the increase takes effect. For purposes of this clause, the term Consumer Price Index means the Consumer Price Index for all urban consumers published by the Department of Labor. . Section 203(b)(5)(A) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(A) ), is amended as follows: In the matter preceding clause (i), by striking including a limited partnership and inserting which may include any entity formed for the purpose of doing for-profit business . In clause (i), by inserting and which is expected to remain invested for not less than 2 years after (C), . By amending clause
(ii)to read as follows: which will benefit the United States economy. A commercial enterprise will only be considered to benefit the United States economy if it will create permanent full-time employment for at least 10 United States workers. For the purposes of this paragraph, the term United States worker means— an employee (other than the immigrant or the immigrant’s spouse, son, or daughter) who is a citizen or national of the United States; or is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207, is granted asylum under section 208, or is otherwise authorized to be employed in the United States. . Subparagraph
(A)of section 216A(d)(2) of the Immigration and Nationality Act ( 8 U.S.C. 1186b(d)(2)(A) ) is amended by adding at the end the following: The fourth anniversary shall be substituted for the second anniversary in applying the preceding sentence if the petitioner provides an explanation for the delay in filing the petition that is based on circumstances outside of the petitioner’s control, and demonstrates that such circumstances will be able to be resolved by the fourth anniversary. . The Secretary of Homeland Security, in appropriate consultation with the Secretary of Commerce and other interested parties, shall conduct a study concerning— current job creation counting methodology and initial projections under section 203(b)(5) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5) ); and how to best promote the employment creation program described in such section overseas to potential immigrant investors. The Secretary of Homeland Security shall submit a report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate not later than 1 year after the date of the enactment of this Act containing the results of the study conducted under paragraph (1). Beginning on the date that is one year after the enactment of this Act, and every year thereafter, the Secretary of Homeland Security shall submit a report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate on the site visits conducted pursuant to section 203(b)(5)(E)(v), including the number and locations of site visits conducted and the number and type of sanctions, if any, resulting from those site visits. Beginning on the date that is one year after the date of the enactment of this Act, and every 2 years thereafter, the Secretary of Homeland Security shall submit a report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate that measures the economic impact of the regional center program described in section 203(b)(5)(E) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(E) ), including— foreign and domestic capital investment; the number of jobs directly and indirectly created; any other economic benefits related to foreign investment under such program; and the number of petitions under such section approved or denied for each regional center. Not later than 120 days after the date of the enactment of this Act, the Secretary of Homeland Security shall prescribe regulations to implement the amendments made by this section.
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