Sec. 4. Other EB–5 visa reforms
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Section 203(b)(5)(A) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(A) ), is amended— in the matter preceding clause (i), by striking (including a limited partnership) ; in clause (i), by striking (C), and inserting (B), and which is expected to remain invested for not less than 2 years; ; and in clause (ii)— by striking and create and inserting by creating ; and by inserting , United States nationals, after citizens . Section 203(b)(5)(B) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(B) ) is amended to read as follows:
Of the visas made available under this paragraph in each fiscal year— 2,000 shall be reserved for immigrants who invest in rural areas; and 2,000 shall be reserved for immigrants who invest in priority urban investment areas. At the end of each fiscal year, any unused visa within each category described in subclause
(I)shall remain available within the same category for subsequent fiscal years. The Secretary of Homeland Security shall determine eligibility for designation as a targeted employment area and shall not be bound by the determination of any other governmental or nongovernmental entity. The designation of an infrastructure project or manufacturing project shall be made at the time of the investment. The designation of a targeted employment area— may be made at the time of the investment or at the time an application is filed under subparagraph (I); and shall be valid for a 2-year period. The Secretary shall establish a process by which regional centers may request a designation under subclause
(I)or (II). A designation under either such subclause shall be issued not later than 60 days after a request by a regional center and a designation under subclause
(II)may be renewed for additional 2-year periods if the area continues to meet the definition of a targeted employment area. An alien investor who has made the required amount of investment in such an area during its period of designation shall not be required to increase the amount of investment based upon expiration of the designation. The Secretary shall establish a fee for the adjudication of a designation request at a level that is sufficient to ensure the full recovery of the costs of providing such adjudication within the required timeframe. Nothing in this clause shall be deemed to prohibit an investor from filing a petition before such designation is made. . Section 203(b)(5)(C) of such Act ( 8 U.S.C. 1153(b)(5)(C) ) is amended— by redesignating clause
(iii)as clause (iv); by striking clauses
(i)and
(ii)and inserting the following: Except as otherwise provided in this subparagraph, the amount of capital required under subparagraph
(A)shall be— $1,200,000 (except as provided in subclause (II)); or $800,000 in the case of an investment in an infrastructure project, a manufacturing project, or a project that is physically located in a targeted employment area. The Secretary may periodically prescribe regulations increasing the dollar amount specified under clause
(i)if any such increase simultaneously affects each category of investment under clause
(i)by the same percentage. The Secretary shall publish a notice in the Federal Register no later than the date that is 60 days prior to the date upon which the increase will take effect. Beginning on January 1, 2022, and on every fifth subsequent January 1, after notice in the Federal Register is published for not less than 60 days, the Secretary shall adjust each of the minimum amounts specified in clause
(i)as follows: If the Secretary did not increase the minimum amount during the 5 prior fiscal years concluding with the fiscal year ending on September 30 of the prior calendar year, the amounts specified in clause
(i)shall automatically be adjusted by the amount of the cumulative percentage change in the Consumer Price Index (CPI–U) for the previous 5 fiscal years, rounded to the nearest multiple of $10,000. If the Secretary increased the minimum amount during the previous 5 fiscal years by an amount that is less than the cumulative percentage change in the CPI–U during the previous 5 fiscal years, the amounts specified in clause
(i)shall automatically be adjusted by the amount of such cumulative percentage change for such period minus any increase previously prescribed by the Secretary by regulations, rounded to the nearest multiple of $10,000. If the Secretary increased the minimum amount during the previous 5 fiscal years by an amount that is greater than the cumulative percentage change in the CPI–U during the previous 5 fiscal years, the amounts specified in clause
(i)shall not be increased. ; and in clause (iv), as redesignated, by striking Attorney General and inserting Secretary . Section 203(b)(5) of such Act ( 8 U.S.C. 1153(b)(5) ) is amended— by redesignating subparagraph (B), as amended by subsection (b), as subparagraph (C); by redesignating the second subparagraph (C), as amended by paragraph (1), as subparagraph (B); and by moving subparagraph (B), as so redesignated, so that it appears after subparagraph (A). Section 203(b)(5) of the Immigration and Nationality Act, as amended by sections 2 and 3, is further amended by inserting after subparagraph
(O)the following: An alien investor, alien spouse, or alien child may not be granted the status of an alien lawfully admitted for permanent residence under this paragraph unless the Secretary of Homeland Security has determined that such alien is not on the Department of the Treasury’s Office of Foreign Assets Control Specially Designated Nationals List. . Section 203(b)(5) of such Act ( 8 U.S.C. 1153(b)(5) ), as amended by sections 2 and 3 of this Act, is further amended by striking the second subparagraph
(D)(relating to definitions) and inserting the following: In this paragraph: The term affiliated job-creating entity means any job-creating entity that is directly or indirectly controlled, managed, or owned by any of the persons involved with the regional center or new commercial enterprise under section 203(b)(5)(K)(v). The term capital — means cash and all real, personal, or mixed tangible assets owned and controlled by the alien investor, or held in trust for the benefit of the alien and to which the alien has unrestricted access; shall be valued at fair market value in United States dollars, in accordance with Generally Accepted Accounting Principles or other standard accounting practice adopted by the Securities and Exchange Commission, at the time it is invested under this paragraph; and shall not include assets acquired, directly or indirectly, by unlawful means, including any cash proceeds of indebtedness secured by such assets. The term certifier means a person in a position of substantive authority for the management or operations of a regional center, new commercial enterprise, affiliated job-creating entity, or issuer of securities, such as a principal executive officer or principal financial officer, with knowledge of such entity’s policies and procedures related to compliance with the requirements of this paragraph. The term full-time employment means employment in a position that requires at least 35 hours of service per week for at least a 24-month period, regardless of who fills the position. A position or job that is filled by more than 1 employee may be considered full-time employment for purposes of subparagraph (A)(ii). The term infrastructure project means a capital investment project in a filed or approved business plan, which is administered by a governmental entity, such as a Federal, State, or local agency or authority, in which the entity contracts with a regional center, new commercial enterprise, or job-creating entity to receive capital investment under the regional center program described in subparagraph
(H)from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project. The term job-creating entity means any organization formed in the United States for the ongoing conduct of lawful business, including a partnership (whether limited or general), corporation, limited liability company, or other entity that receives, or is established to receive, capital investment from alien investors or a new commercial enterprise under the regional center program described in subparagraph
(H)and which is responsible for creating jobs to satisfy the requirement under subparagraph (A)(ii). The term manufacturing project means a capital investment project in a filed or approved business plan, the purpose of which is to improve, construct, or operate a plant, factory, or mill, which primarily exists in order to produce or assemble a product in the United States. The term new commercial enterprise means any for-profit organization formed in the United States for the ongoing conduct of lawful business, including a partnership (whether limited or general), corporation, limited liability company, or other entity that receives, or is established to receive, capital investment from alien investors under subparagraph (H). The term priority urban investment area means an area consisting of a census tract or tracts, each of which is in a metropolitan statistical area and, using the most recent census data available, each of which has— an unemployment rate that is at least 150 percent of the national average unemployment rate; a poverty rate that is at least 30 percent; or a median family income that is not more than 60 percent of the greater of the statewide median family income or the metropolitan statistical area median family income. The term rural area means an area that— is outside of the outer boundary of any city or town having a population of 20,000 or more (based on the most recent decennial census of the United States); and is— outside of a metropolitan statistical area; within an outlying county of a metropolitan statistical area; or within any census tract that is greater than 100 square miles in area and has a population density of fewer than 100 people per square mile. The term targeted employment area means— a priority urban investment area; a rural area; any area within the geographic boundaries of any military installation that was closed, during the 25-year period immediately preceding the filing of an application under subparagraph
(F)based upon a recommendation by the Defense Base Closure and Realignment Commission; or an area consisting of a census tract or contiguous census tracts, each of which, using the most recent census data available— is not located within a metropolitan statistical area; and has a poverty rate that is at least 20 percent or a median family income that is not more than 80 percent of the statewide median family income. . The Secretary of Homeland Security shall issue appropriate regulations to account for the modified definition of targeted employment area in section 203(b)(5)(Q)(xi) of the Immigration and Nationality Act, as added by paragraph (1), within 180 days of the enactment of this Act. Section 203(h) of such Act ( 8 U.S.C. 1153(h) ) is amended by adding at the end the following: An alien who has reached 21 years of age and has been admitted under subsection
(d)as a lawful permanent resident on a conditional basis as the child of an alien lawfully admitted for permanent residence under subsection (b)(5), whose lawful permanent resident status on a conditional basis is terminated under section 216A or subparagraph
(O)of subsection (b)(5), shall continue to be considered a child of the principal alien for the purpose of a subsequent immigrant petition by the principle alien under subsection (b)(5) if the alien who was a child of the principle alien remains unmarried and the subsequent petition is filed by the principal alien not later than 1 year after the termination of conditional lawful permanent resident status. No alien shall be considered a child under this paragraph with respect to more than 1 petition filed after the alien reaches 21 years of age. . The Secretary of Homeland Security may establish, fix the compensation of, and appoint individuals to designated critical, technical, and professional positions needed to administer sections 203(b)(5) and 216A of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5) and 1186b). Section 245 of the Immigration and Nationality Act ( 8 U.S.C. 1255 ) is amended— in subsection (k), in the matter preceding paragraph (1), by striking or
(3)and inserting (3), or
(5); and by adding at the end the following: If the approval of a petition for classification under section 203(b)(5) would make a visa immediately available to the alien beneficiary, the alien beneficiary’s application for adjustment of status under this section shall be considered to be properly filed whether the application is submitted concurrently with, or subsequent to, the visa petition. . Section 201(d)(1) is amended by— striking the period at the end of subparagraph
(B)and inserting , plus ; and inserting the following new subparagraph
(C)at the end— the number of unused visas computed under section 203(b)(5)(C)(i)(II) (which number shall be allocated pursuant to such section). . Section 203(b)(1) of the Immigration and Nationality Act is amended by inserting , subject to section 203(b)(5)(C)(i), after classes specified in paragraphs
(4)and
(5). Section 203(b)(5)(A) of the Immigration and Nationality Act is amended by striking Visas shall be made available and inserting Subject to section 203(b)(5)(C)(i), visas shall be made available . Except as provided under paragraph (2), the amendments made by this section shall be effective upon the date of the enactment of this Act. The amendments made by subparagraphs
(A)and
(B)of subsection (c)(1) and subsection (e)(1) shall not apply to a beneficiary of a petition that— was filed by an alien investor under section 203(b)(5) of the Immigration and Nationality Act ( 8 U.S.C. 1153(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. Items
(aa)and
(bb)of section 203(b)(5)(C)(i)(I) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(C)(i)(I) ), as added by this section, shall take effect beginning on October 1, 2016. Petitioners described in paragraph (2)(A) may apply to amend their petition to redesignate the targeted employment area upon which such petition was based to conform to the targeted employment area criteria described in section 203(b)(5)(Q) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(Q) ), as amended by subsection (e), if such application for amendment is filed with the Secretary prior to October 1, 2017. If a petitioner applies to amend a petition in accordance with subparagraph (A)— the immigrant visa priority date related to the original petition shall be retained; changes made in the amended petition to redesignate such area shall not be deemed a material change; and the minimum investment amount such petitioner is required to make shall not be affected by any such redesignation.
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