Sec. 3. Reauthorization and reform of the regional center program
6,731 words·~31 min read·
/bill/114/hr/5992/ih/section-3A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
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of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 ( 8 U.S.C. 1153 note) is repealed.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) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5) ), as amended by section 2, is further amended by inserting after subparagraph
(G)the following: Visas under this paragraph shall be made available through September 30, 2021, to qualified immigrants (and the eligible spouses and children of such immigrants) pooling their investments with one or more additional qualified immigrants participating in a program implementing this paragraph that promotes economic growth, including prospective job creation and increased domestic capital investment, through regional centers operating within defined geographic areas and designated by the Secretary of Homeland Security based upon proposals for concentrating pooled investment within such areas. In processing petitions under section 204(a)(1)(H) for classification pursuant to this subparagraph, the Secretary of Homeland Security— may process petitions in a manner and order established by the Secretary; and shall deem such petitions to include records previously filed with the Secretary pursuant to subparagraph
(I)if the alien petitioner certifies that such records are incorporated by reference into the alien’s petition. The manager of a prospective regional center shall file a proposal, as provided in clause (i), with the Secretary of Homeland Security requesting that the Secretary designate the regional center for purposes of this subparagraph. A regional center shall operate within a defined and limited geographic area, which shall be described in the proposal and shall be consistent with the purpose of concentrating pooled investment within such area. The proposal shall demonstrate that the pooled investment will have a significant economic impact on such area, and shall include— reasonable predictions, supported by economically and statistically valid forecasting tools, concerning— the amount of investment that will be pooled; the kinds of new commercial enterprises that will receive such investments; details of the jobs that will be created directly or indirectly as a result of such investments; and other positive economic effects such investments will have; and a description of the policies and procedures in place reasonably designed to monitor new commercial enterprises and any affiliated job-creating entity to ensure compliance with— all applicable laws, regulations, and Executive orders of the United States, including immigration laws and securities laws; and all securities laws of each State in which securities offerings will be conducted, investment advice will be rendered, or the offerors or offerees reside. The Secretary of Homeland Security shall permit aliens seeking admission under this subparagraph to satisfy only up to 90 percent of the requirement under subparagraph (A)(ii) with jobs that are estimated to be created indirectly through investment in accordance with this subparagraph. An employee of the new commercial enterprise or job-creating entity may be considered to hold a job that has been directly created. In determining compliance with subparagraph (A)(ii), the Secretary of Homeland Security shall permit aliens seeking admission under this subparagraph to rely on economically and statistically valid methodologies for determining the number of jobs created by the program, including— jobs estimated to have been created directly, which may be verified using such methodologies, except that the Secretary may request additional evidence to verify that the directly created jobs satisfy the requirements under subparagraph (A)(ii); and consistent with this subparagraph, jobs estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, job creation, and increased domestic capital investment resulting from the program. In determining compliance with the job creation requirement under subparagraph (A)(ii), the Secretary may include jobs estimated to be created under a methodology whereby jobs are attributable to prospective tenants occupying commercial real estate created or improved by capital investments, but only if the number of such jobs estimated to be created has been determined by an economically and statistically valid methodology and such jobs are not existing jobs that have been relocated. Alien investor capital may not be utilized, by a new commercial enterprise or otherwise, to purchase municipal bonds or any other bonds, if such bonds are available to the general public, either as part of a primary offering or from a secondary market. The length of full-time construction activity jobs that last shorter than 24 months may be aggregated to satisfy the employment creation requirement under subparagraph (A)(ii) for alien investors participating in the program described in this subparagraph. A construction activity job may be considered a job that is created directly. The Secretary of Homeland Security shall— require a regional center to give advance notice to, and obtain approval from, the Secretary of significant proposed changes to its organizational structure, ownership, or administration, including the sale of such center or other arrangements in which individuals not previously subject to the requirements under subparagraph
(K)become involved with the regional center, before any such proposed changes may take effect unless exigent circumstances are present in which case the regional center shall provide notice to the Secretary within 5 business days of such change; approve the changes referred to in subclause
(I)only after— notice of any such proposed changes are made publicly available through a publicly accessible Web site of U.S. Citizenship and Immigration Services for a period of not fewer than 30 days; and the Secretary determines that the regional center would remain compliant with this subparagraph and with subparagraph (K); and notwithstanding the pendency of a request for approval of any amendment that has been filed pursuant to subclause (I), adjudicate business plans under subparagraph
(I)and petitions under section 204(a)(1)(H). A regional center shall file an application with the Secretary of Homeland Security for each particular investment offering in or through an associated new commercial enterprise before any alien files a petition for classification under this paragraph by reason of investment in that offering, which shall include— a comprehensive business plan for a specific capital investment project; a credible economic analysis regarding estimated job creation that is based upon economically and statistically valid methodologies; any documents filed with the Securities and Exchange Commission under the Securities Act of 1933 ( 15 U.S.C. 77a et seq. ) or with the securities regulator of any State, as required by law; any investment and offering documents, including subscription, investment, partnership, and operating agreements, private placement memoranda, term sheets, biographies for management, officers, directors, and any individual with similar responsibilities, the description of the business plan to be provided to potential alien investors, and marketing materials used or drafts prepared for use in connection with the offering, which shall contain references, as appropriate, to any— investment risks associated with the new commercial enterprise and the job-creating entity; conflicts of interest that currently exist or may arise among the regional center, new commercial enterprise, job-creating entity, or the principals or attorneys of the aforementioned entities; pending material litigation or bankruptcy, or adverse judgments or bankruptcy orders issued during the most recent 10-year period, in the United States or abroad, affecting the regional center, the new commercial enterprise, any affiliated job-creating entity, or any other enterprise in which any principal of the aforementioned entities held majority ownership at the time; and fees, ongoing interest, or other compensation that has been paid, or will be paid, to any person in connection with the investment, including agents, finders, or broker dealers involved in the offering, and of which the regional center or new commercial enterprise has knowledge; a description of the services performed, or which will be performed, by such person to entitle the person to such fees, interest, or compensation; and the name and contact information of any such person; a description of the policies and procedures, such as those related to internal and external due diligence, reasonably designed to cause the regional center, new commercial enterprise, and any affiliated job-creating entity, their agents, employees, advisors, and attorneys, and any persons in active concert or participation with the regional center, new commercial enterprise, or any affiliated job-creating entity to comply, as applicable, with the securities laws of the United States and the laws of the applicable States in connection with the offer, purchase, or sale of their securities; a certification from the regional center and any issuer of securities that is affiliated with the regional center that their respective agents, employees, advisors, and attorneys, and any parties associated with the regional center or the issuer of securities that is affiliated with the regional center, are in compliance with the securities laws of the United States and the laws of the applicable States in connection with the offer, purchase, or sale of its securities, to the best of the certifier’s knowledge, after a due diligence investigation; and documentation demonstrating that the regional center consulted with a local economic development agency or municipality regarding the capital investment project, which shall address— the number and type of jobs anticipated to be created; and whether the project is consistent with the agency or municipality’s plan for economic development in the region. The approval of an application under this subparagraph shall be binding for purposes of the adjudication of subsequent petitions seeking classification under this paragraph by immigrants investing in the same capital investment project through a new commercial enterprise, and of petitions by the same immigrants filed under section 216A, except in the case of fraud, misrepresentation, criminal misuse, a threat to public safety or national security, a material change that affects the program eligibility of the approved economic model, other evidence affecting program eligibility that was not disclosed by the applicant during the adjudication process, or a material mistake of law or fact in the prior adjudication. The Secretary shall— perform site visits to regional centers; and perform at least 1 site visit to each new commercial enterprise and job-creating entity, which— shall include a review for evidence of direct job creation in accordance with subparagraph (H)(v)(I); and may occur at any time during the period between the filing of an application for approval of an investment in a new commercial enterprise under this subparagraph and the adjudication of the first petition for removal of conditions on lawful permanent resident status under section 216A(c) filed by an alien investing in such investment. Each regional center designated under subparagraph
(H)shall annually submit a statement 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, which shall include— a certification stating that, to the best of the certifier’s knowledge, after a due diligence investigation, the regional center, the new commercial enterprise, and any affiliated job-creating entity, are in compliance with clauses
(i)and
(ii)of subparagraph (K); a certification described in subparagraph (L)(ii)(II); a certification stating that, to the best of the certifier’s knowledge, after a due diligence investigation, the regional center is in compliance with subparagraph (N)(iii); a description of any pending material litigation or bankruptcy proceedings, or litigation or bankruptcy proceedings resolved during the preceding fiscal year, involving the regional center, new commercial enterprise, or any affiliated job-creating entity; an accounting of all alien investor capital invested pursuant to subparagraph
(H)in the regional center, new commercial enterprise, or job-creating entity; for each new commercial enterprise associated with the regional center— an accounting of the aggregate capital invested in the new commercial enterprise and job-creating entity by alien investors under this paragraph for each capital investment project being undertaken by the new commercial enterprise; a description of how such capital is being used to execute each capital investment project in the filed business plan or plans; evidence that 100 percent of such capital has actually been committed to each capital investment project; detailed evidence of the progress made toward the completion of each capital investment project; an accounting of the aggregate direct jobs created or preserved; to the best of the regional center’s knowledge, for all fees, including administrative fees, loan monitoring fees, loan management fees, commissions and similar transaction-based compensation, collected from alien investors by the regional center, new commercial enterprise, any affiliated job-creating entity, or issuer of securities associated with the regional center, or any promoter, finder, broker-dealer, or other entity engaged by any of the foregoing to locate alien investors investing pursuant to subparagraph (H)— a description of all fees collected; an accounting of the entities that received such fees; and the purpose for which such fees were collected; any documentation referred to in subparagraph (I)(i)(IV), if there has been a material change during the preceding fiscal year; and a certification by the regional center that such statements are accurate, to the best of the certifier’s knowledge, after a due diligence investigation; and a description of the regional center’s policies and procedures that are designed to enable the regional center to comply with applicable Federal labor laws. The Director— shall require the regional center to amend or supplement an annual statement required under clause
(i)if the Director determines that such statement is deficient; and may require the regional center to amend or supplement such annual statement if the Director determines that such an amendment or supplement is appropriate. The Director shall sanction any regional center entity in accordance with subclause
(II)if the regional center fails to submit an annual statement or if the Director determines that the regional center— knowingly submitted or caused to be submitted a statement, certification, or any information submitted pursuant to this subparagraph that contained an untrue statement of material fact; or is conducting itself in a manner inconsistent with its designation, including any willful, undisclosed, and material deviation by new commercial enterprises from any filed business plan for such commercial enterprises. The Director shall establish a graduated set of sanctions based on the severity of the violations referred to in subclause (I), including— fines equal to not more than 10 percent of the total capital invested by alien investors in the regional center’s new commercial enterprises or job-creating entities, the payment of which shall not in any circumstance utilize any of such alien investors’ capital investments, and which shall be deposited into the EB–5 Integrity Fund established under subparagraph (M); temporary suspension from participation in the program described in subparagraph (H), 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 one or more individuals associated with the regional center or new commercial enterprise or job-creating entity; and termination of regional center designation. No person shall be permitted to be involved with any regional center, new commercial enterprise, or job-creating entity if— the person has been found to have committed— a criminal or civil violation involving fraud or deceit within the previous 10 years; a civil violation resulting in a liability in excess of $1,000,000 involving fraud or deceit; or a crime resulting in a conviction with a term of imprisonment of more than 1 year; the person is subject to a final order, for the duration of any penalty imposed by such order, of a State securities commission (or an agency or officer of a State who performs similar functions), a State authority that supervises or examines banks, savings associations, or credit unions, a State insurance commission (or an agency of or officer of a State who performs similar functions), an appropriate Federal banking agency, the Commodity Futures Trading Commission, the Securities and Exchange Commission, a financial self-regulatory organization recognized by the Securities and Exchange Commission, or the National Credit Union Administration, which is based on a violation of any law or regulation that— prohibits fraudulent, manipulative, or deceptive conduct; or bars the person from— association with an entity regulated by such commission, authority, agency, or officer; appearing before such commission, authority, agency, or officer; engaging in the business of securities, insurance, or banking; or engaging in savings association or credit union activities; the person is engaged in, has ever been engaged in, or seeks to engage in— any illicit trafficking in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act); any activity relating to espionage, sabotage, or theft of intellectual property; any activity related to money laundering (as described in section 1956 or 1957 of title 18, United States Code); any terrorist activity (as defined in section 212(a)(3)(B)); any activity constituting or facilitating human trafficking or a human rights offense; any activity described in section 212(a)(3)(E); or the violation of any statute, regulation, or Executive order regarding foreign financial transactions or foreign asset control; or the person— is, or during the preceding 10 years has been, included on the Department of Justice’s List of Currently Disciplined Practitioners; or during the preceding 10 years has received a reprimand or otherwise been publicly disciplined for conduct related to fraud or deceit by a State bar association of which the person is or was a member. No person may be 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 (as defined in paragraphs
(20)and
(22)of section 101(a)). No foreign government entity may provide capital to, or be directly or indirectly involved with the ownership or administration of, a regional center, a new commercial enterprise, or a job-creating entity. The Secretary shall require such attestations and information, including the submission of fingerprints or other biometrics to the Federal Bureau of Investigation, and shall perform such criminal record checks and other background and database checks with respect to a regional center, new commercial enterprise, and any affiliated job-creating entity, and persons involved with such entities (as described in clause (v)), in order to determine whether such entities are in compliance with clauses
(i)and (ii). The Secretary may require the information and attestations described in this clause from such entities, and any person involved with such entities, at any time on or after the date of the enactment of the American Job Creation and Investment Promotion Reform Act of 2016 and may perform such checks with respect to any job creating entity, and persons involved with such entity. The Secretary shall suspend or terminate the designation of any regional center, or the participation under the program of any new commercial enterprise or job-creating entity under this paragraph if the Secretary determines that such entity— knowingly involved a person with such entity in violation of clause
(i)or (ii); failed to provide an attestation or information requested by the Secretary; or knowingly provided any false attestation or information under clause (iii). The Secretary, after the performance of the criminal record and other background checks described in clause (iii), shall notify a regional center, new commercial enterprise, or job-creating entity whether any person involved with such entities is not in compliance with clause
(i)or (ii). If, 30 days after receiving such notification, the regional center, new commercial enterprise, or job-creating entity, as the case may be, fails to discontinue the prohibited person’s involvement with the regional center, new commercial enterprise, or job-creating entity, as applicable, the regional center, new commercial enterprise, or job-creating entity shall be deemed to have knowledge under subclause (I)(aa) that such person is in violation of clause
(i)or (ii). For the purposes of this subparagraph, a person is considered to be involved with a regional center, a new commercial enterprise, any affiliated job-creating entity, or other job-creating entity, as applicable, if he or she is, directly or indirectly, an owner or in a position of substantive authority to make operational or managerial decisions over pooling, securitization, investment, release, acceptance, or control of any funding that was procured pursuant to subparagraph (H). An individual may be in a position of substantive authority if he or she serves as a principal, representative, administrator, owner, officer, board member, manager, executive, general partner, fiduciary, or in a similar position at the regional center, new commercial enterprise, any affiliated job-creating entity, or other job-creating entity, respectively. The United States has jurisdiction over the purchase or sale of any security offered or sold by any regional center or any party associated with a regional center for purposes of the securities laws. Subject matter jurisdiction shall also lie within the United States. Solely for purposes of section 5 of the Securities Act of 1933 ( 15 U.S.C. 77e ), a regional center or any party associated with a regional center is not precluded from offering or selling a security pursuant to Regulation S under the Securities Act of 1933 ( 15 U.S.C. 77a et seq. ) to the extent that such offering or selling otherwise complies with that regulation. The Secretary of Homeland Security may not approve an application for regional center designation or regional center amendment unless the regional center certifies that, to the best of the certifier’s knowledge, after a due diligence investigation, the regional center is in compliance with and has policies and procedures, such as those related to internal and external due diligence, reasonably designed to confirm, as applicable, that all parties associated with the regional center are and will remain in compliance with the securities laws of the United States and of any State in which the offer, purchase, or sale of securities was conducted, or the issuer of securities was located, or the investment advice was provided by the regional center or parties associated with the regional center. A regional center shall annually reissue a certification described in subclause
(I)in accordance with subparagraph (J). Annual certifications under this subclause shall also certify compliance with clause
(iii)by stating that— the certifier is in a position to have knowledge of the offers, purchases, and sales of securities or the provision of investment advice by parties associated with the regional center; to the best of the certifier’s knowledge, after a due diligence investigation, all such offers, purchases, and sales of securities or the provision of investment advice complied with the securities laws of the United States and the securities laws of any State in which the offer, purchase, or sale of securities was conducted, or the issuer of securities was located, or the investment advice was provided; and records, data, and information related to such offers, purchases, and sales have been maintained. If a regional center, through its due diligence, discovered during a previous fiscal year that the regional center or any party associated with the regional center was not in compliance with the securities laws of the United States or the securities laws of any State in which the securities activities were conducted by any party associated with the regional center, the certifier shall— describe the activities that led to noncompliance; describe the actions taken to remedy the noncompliance; and certify that the regional center and all parties associated with the regional center are currently in compliance, to the best of the certifier’s knowledge, after a due diligence investigation. Each regional center shall monitor and supervise all offers, purchases, and sales of, and investment advice relating to securities made by parties associated with the regional center to confirm compliance with the securities laws of the United States, and maintain records, data, and information relating to all such offers, purchases, sales, and investment advice during the 5-year period beginning on the date of their creation. Such records, data, and information shall be made available to the Secretary upon request. In addition to any other authority provided to the Secretary under this paragraph, the Secretary, in the Secretary’s discretion, may suspend or terminate the designation of any regional center, or impose other sanctions against the regional center, if— 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 or the provision of investment advice, or any party associated with the regional center is so enjoined and the regional center knew, or reasonably should have known, that this is the case; the regional center is subject to any final order of the Securities and Exchange Commission or a State securities regulator, or any party associated with the regional center is subject to such an order and the regional center knew, or reasonably should have known, that this is the case, if the order— bars such person from association with an entity regulated by the Securities and Exchange Commission or a State securities regulator; or constitutes a final order based on a finding of an intentional violation or a violation related to fraud or deceit in connection with the offer, purchase, or sale of, or investment advice relating to, a security; or the regional center submitted or caused to be submitted a certification described in clause
(ii)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 light of the circumstances under which they were made, not misleading, or any party associated with the regional center undertook such an action and the regional center knew, or reasonably should have known, that this is the case. Nothing in this subparagraph may be construed to impair or limit the authority of the Securities and Exchange Commission under the Federal securities laws or any State securities regulator under State securities laws. In this subparagraph, the term party associated with a regional center means— the regional center; any new commercial enterprise or affiliated job-creating entity or issuer of securities associated with the regional center; the regional center’s and new commercial enterprise’s owners, officers, directors, managers, partners, agents, employees, promoters and attorneys; or any person in active concert or participation with the regional center or directly or indirectly controlling, controlled by, or under common control with the regional center. There is established in the United States Treasury a special fund, which shall be known as the EB–5 Integrity Fund (referred to in this subparagraph as the Fund ). Amounts deposited into the Fund shall be available to the Secretary of Homeland Security until expended for the purposes set forth in clause (iii). Beginning on January 1, 2017, and each year thereafter, the Secretary of Homeland Security shall collect a fee of $25,000 for the Fund from each regional center designated under subparagraph (H). The fee shall be $10,000 if a regional center has 20 or fewer alien investors investing pursuant to subparagraph
(H)in the immediately preceding fiscal year in its new commercial enterprises. Beginning on October 1, 2016, the Secretary shall collect a fee of $2,000 for the Fund with each petition filed pursuant to section 204(a)(1)(H) for classification under this paragraph pursuant to subparagraph (H). The Secretary may prescribe regulations, as necessary, to increase the dollar amounts under this clause to ensure the Secretary’s continued ability to carry out the activities specified in clause (iii). The Secretary shall— use not less than 1/3 of the amounts deposited into the Fund to conduct audits and site visits (with or without notice); use not less than 1/3 of the amounts deposited into the Fund for investigations based outside of the United States, including— monitoring and investigating program-related events and promotional activities; and ensuring an alien investor’s compliance with subparagraph (D); use amounts deposited into the Fund— to detect and investigate fraud or other crimes; and to determine whether regional centers, new commercial enterprises, any affiliated job-creating entities, and alien investors (and their alien spouses and alien children, if any) comply with applicable immigration laws; use amounts deposited into the Fund to conduct interviews of the owners, officers, directors, managers, partners, agents, employees, promoters, and attorneys of regional centers, new commercial enterprises, and job-creating entities; and otherwise use amounts deposited into the Fund as the Secretary determines to be necessary, including monitoring compliance with the requirements under section 8 of the American Job Creation and Investment Promotion Reform Act of 2016. The Secretary of Homeland Security shall— impose a reasonable penalty, which shall be deposited into the Fund, if a regional center does not pay the fee required under clause (ii)(I) within 30 days of the date on which such clause requires the Secretary to collect the fee; and terminate the designation of any regional center that does not pay the fee required under clause (ii)(I) within 90 days of the date on which such clause requires the Secretary to collect the fee. The Secretary shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes how amounts in the Fund were expended during the immediately preceding fiscal year. Direct and third party promoters of a regional center, any new commercial enterprise, an affiliated job-creating entity, or issuer of securities affiliated with the regional center shall comply with the rules and standards prescribed by the Secretary of Homeland Security and any applicable Federal or State securities laws, to oversee regional center promotion, including— registration with U.S. Citizenship and Immigration Services, which— may be limited to identifying and contact information of such promoter and confirmation of the existence of the written agreement required by clause (iii); and shall not include any requirement that U.S. Citizenship and Immigration Services approve the registration of such promoter; minimum qualifications; guidelines for offering investment opportunities and representing the visa process to prospective investors under the program established under subparagraph (H); and permissible fee arrangements. If the Secretary determines that a direct or third-party promoter has violated clause (i), the Secretary shall suspend or permanently bar such individual from participation in the program described in this paragraph. Each regional center shall maintain a written agreement between the regional center, the new commercial enterprise, any affiliated job-creating entity, or any issuer of securities affiliated with the regional center, and each direct or third-party promoter operating on behalf of such entities or issuer that outlines the rules and standards prescribed under clause (i). Each petition filed pursuant to section 204(a)(1)(H) for classification under this paragraph pursuant to subparagraph
(H)shall include a disclosure, signed by the alien investor, that reflects all fees, ongoing interest, and other compensation paid to any person that the regional center or new commercial enterprise knows has received, or will receive, in connection with the investment, including compensation to agents, finders, or broker dealers involved in the offering, to the extent not already specifically identified in the business plan filed under subparagraph (I). The list of such registered promoters may be made publicly available by the Secretary. Except as provided in clause (v), upon the termination or debarment, as applicable, from the program under this paragraph of a regional center, new commercial enterprise, or job-creating entity, an otherwise qualified petition under section 204(a)(1)(H) or the conditional permanent residence of an alien who has been admitted to the United States pursuant to section 216A(a)(1) based on an investment in a terminated regional center, new commercial enterprise, or job-creating entity shall remain valid or continue to be authorized, as applicable, consistent with this subparagraph. The petition under section 204(a)(1)(H) of an alien described in clause
(i)and the conditional permanent resident status of an alien described in clause
(i)shall be terminated 180 days after the termination from the program under this paragraph of a regional center, a new commercial enterprise, or a job creating entity unless— in the case of the termination of a regional center— the new commercial enterprise associates with an approved regional center; such alien makes a qualifying investment in another new commercial enterprise associated with an approved regional center; or such alien makes a qualifying investment in another new commercial enterprise under this paragraph not associated with a regional center; or in the case of the debarment of a new commercial enterprise or job-creating entity, such alien invests in another new commercial enterprise associated with an approved regional center. Aliens described in subclause (I)(bb), (I)(cc), or
(II)of clause
(ii)shall be eligible to have their conditions removed pursuant to section 216A beginning on the date that is 2 years after the date of the subsequent investment. Except as provided in clause (v), if the Secretary, the Attorney General, or the Securities and Exchange Commission files a criminal or civil enforcement action in any United States District Court containing allegations that a regional center, new commercial enterprise, job-creating entity, or any person involved with the foregoing entities, committed fraud which affected an alien’s investment capital under subparagraph (A), or if a State authority or agency files such an action in a State court— for all related petitions for classification under this paragraph and petitions for removal of conditions described in section 216A— the Secretary may hold such petitions in abeyance unless ordered to take action by the United States District Court overseeing such action, if applicable; and the United States District Court overseeing such action, if applicable, may enter an order extending any deadlines applicable under this paragraph and to prevent age-out of derivative beneficiaries; the alien investor may— petition to amend the alien’s underlying petition for classification under this paragraph or the petition for removal of conditions described in section 216A(c) without such facts underlying the amendment being deemed a material change; and retain the immigrant visa priority date related to the original petition; and any funds obtained or recovered by an alien investor, directly or indirectly, from claims against third parties, including insurance proceeds, or any additional investment capital provided by the alien after the enforcement action described in this clause is filed, may be deemed to be such alien’s investment capital for the purposes of subparagraph
(A)if such investment otherwise complies with the requirements of this paragraph and section 216A. If the Secretary has reason to believe an alien was a knowing participant in the conduct that led to the termination of a regional center, new commercial enterprise, or job-creating entity, as described in clause (i), or was a knowing participant in the alleged wrongdoing that led to an enforcement action described in clause (iv)— the alien shall not be accorded any benefit under this subparagraph; and the Secretary shall notify the alien of such belief and, subject to section 216A(b)(2), shall deny or initiate proceedings to revoke the approval of such alien’s petition, application, or benefit (and that of any spouse or child, if applicable) described in this paragraph. Except as provided in clause (iii), a new commercial enterprise shall deposit and maintain the capital investment of each alien investor in a separate account as described in this subparagraph, including funds held in escrow. Prior to, or within one business day of, the deposit of an alien investor’s capital investment in a separate account, the new commercial enterprise shall provide the following information to the alien investor whose capital investment will be or has been deposited into the separate account, the regional center associated with the new commercial enterprise, and the Director of U.S. Citizenship and Immigration Services: The name, address, and other contact information of the bank or other financial institution where the separate account is or will be maintained and the name of the authorized signatory required under subclause (II). Sufficient information to enable the alien investor whose capital investment will be or has been deposited into the separate account, the regional center associated with the new commercial enterprise, and the Director to view online the balance in the separate account on an ongoing basis. At least one of the authorized signatories to the separate account shall be an individual who is— independent of, and not directly or indirectly related to, the new commercial enterprise, the regional center associated with the new commercial enterprise, the job creating entity, or any of the principals or managers of such entities; and an officer at the bank or other financial institution where the separate account is maintained; licensed, active, and in good standing as an attorney, certified public accountant, or broker-dealer; or otherwise authorized by the Director to serve as a signatory. The funds in a separate account may be transferred only— to the alien investor who contributed the funds held in the separate account as a refund of that investor’s capital investment if otherwise permitted under this paragraph, to another separate account, or to a job creating entity or otherwise deployed into the capital investment project for which the funds were intended; and after at least one of the authorized signatories described in clause (ii)(II) has provided written consent for the proposed transfer. Prior to, or within one business day of, funds being transferred from a separate account, the new commercial enterprise shall provide notice to the alien investor whose capital investment has been or will be transferred from the separate account, the regional center associated with the new commercial enterprise, and the Director, including— the amount of the funds that are to be or were transferred; and the destination of the transferred funds, including whether the funds are transferred to another separate account, or transferred directly to a job creating entity or otherwise deployed into the capital investment project for which the funds were intended. In the case of a transfer of funds from a separate account maintained by a new commercial enterprise to an affiliated job creating entity, the affiliated job creating entity shall maintain the funds in a separate account that meets the requirements of this section until the funds are deployed into the capital investment project for which they were intended. Within 30 days of the deployment of the funds into the capital investment project for which they were intended, an individual who is licensed, active, and in good standing as an attorney, certified public accountant, or broker-dealer, or an individual otherwise authorized by the Director to serve as a signatory, shall verify that the funds were deployed into the capital investment project for which they were intended and shall so notify the alien investor whose capital investment was invested, the regional center associated with the capital investment project, and the Director. Any notice or information to be provided under this section may be given via electronic mail. In this subparagraph: The term financial institution has the meaning given such term by section 20 of title 18, United States Code. The term separate account means an account— maintained in the United States by a new commercial enterprise at a federally regulated bank or at another financial institution in the United States that is insured; and that contains only the pooled investment funds of alien investors in a new commercial enterprise with respect to a single capital investment project. . Except as provided in paragraph (2), the amendments made by this section shall be effective at any time after the date of the enactment of this Act, as determined by the Secretary, and shall be effective not later than 90 days after such date of enactment. Clauses
(iv)and
(v)of subparagraph
(H)of section 203(b)(5) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5) ), as inserted by subsection (b), shall not apply to a petition that— was filed by an alien investor under such section 203(b)(5) prior to June 1, 2015; was filed by an alien investor under such section 203(b)(5) during the period beginning on June 1, 2015, and ending on the date of the enactment of this Act if such beneficiary is investing in the same commercial enterprise concerning the same economic activity as contained in an exemplar filed prior to June 1, 2015, or approved by the Secretary of Homeland Security at any time prior to the date of enactment of this Act, unless the Secretary determines that such approval or filing was based on fraud, misrepresentation in the record of proceeding, or is legally deficient; or is filed under section 216A of such Act ( 8 U.S.C. 1186b ) if the underlying petition filed under section 203(b)(5) of such Act was filed prior to June 1, 2015, or approved before the date of the enactment of this Act. Subparagraph
(P)of section 203(b)(5) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5) ), as inserted by subsection (b), shall take effect 1 year after the date of the enactment of this Act and shall apply to any application filed by a regional center for approval of an investment under subparagraph
(I)of such section 203(b)(5), as so inserted, filed on or after such date.
Connectionstraces to 4
Citation graph
cites case law
Sec. 3
Reauthorization and reform of the regional center program
Cites 4Cited by 0 across 0 sources