Sec. 2. New EB–5 general provisions
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Section 203(b)(5) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5) ) is amended by inserting after subparagraph
(C)the following: An alien investor shall demonstrate that the capital required under subparagraph
(A)and any funds used to pay administrative costs and fees associated with the alien’s investment were obtained from a lawful source and through lawful means. The Secretary of Homeland Security shall require, as applicable, that an alien investor’s petition under this paragraph contain— business and tax records, or similar records, including, but not limited to— foreign business registration records; to the extent such tax returns have been prepared, corporate or partnership tax returns (or tax returns of any other entity in any form filed in any country or subdivision of such country), and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind, filed within 7 years, with any taxing jurisdiction in or outside the United States by or on behalf of the alien investor; and evidence identifying any other source of capital or administrative fees; evidence related to monetary judgments against the alien investor, including certified copies of any judgments, and evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving possible monetary judgments against the alien investor from any court in or outside the United States; and the identity of all persons who transfer into the United States, on behalf of the alien investor— any funds that are used to meet the capital requirement under subparagraph (A); and any funds that are used to pay administrative costs and fees associated with the alien’s investment. Gifted funds may be counted toward the minimum capital investment requirement under subparagraph
(B)only if such funds were gifted to the alien investor by the alien investor’s spouse, parent, son, or daughter (but not children (as defined in section 101(b)(1))), sibling, or grandparent and such funds were gifted in good faith and not to circumvent any limitations imposed on permissible sources of capital under this subparagraph. If a significant portion of the capital invested under subparagraph
(A)was gifted to the alien investor, the Secretary shall require the alien investor’s petition under this paragraph to include records described in subclauses
(I)and
(II)of clause
(ii)from the donor. Capital derived from indebtedness may be counted toward the minimum capital investment requirement under subparagraph
(B)only if such capital is— secured by assets owned by the alien investor; and issued by a banking or lending institution that is properly chartered or licensed under the laws of any State, territory, country, or applicable jurisdiction, and that is not sanctioned or restricted, which the Secretary shall determine after consulting with relevant commercial or government databases, such as those of the Department of the Treasury’s Office of Foreign Assets Control, Office of Terrorist Financing and Financial Crimes, and Financial Crimes Enforcement Network. The Secretary of Homeland Security shall deny or revoke the approval of a petition, application, or benefit described in this paragraph, including the documents described in clause (ii), if the Secretary determines that the approval of such petition, application, or benefit is contrary to the national interest of the United States for reasons relating to threats to public safety or national security. The documents described in this clause are— a certification, designation, or amendment to the designation, of a regional center; a petition seeking classification of an alien as an alien investor under this paragraph; a petition to remove conditions under section 216A; or an application for approval of a business plan in a new commercial enterprise under subparagraph (I). If a regional center, new commercial enterprise, or job-creating entity has its designation or participation in the program under this paragraph terminated for reasons relating to public safety or national security, any person associated with such regional center, new commercial enterprise, or job-creating entity, including an alien investor, shall be permanently barred from future participation in the program under this paragraph if the Secretary of Homeland Security, in the Secretary’s discretion, determines, by a preponderance of the evidence, that such person was a knowing participant in the conduct that led to the termination. If the Secretary of Homeland Security determines that the approval of a petition, application, or benefit described in this paragraph should be denied or revoked pursuant to clause (i), the Secretary shall— notify the relevant individual, regional center, or commercial entity of such determination; and deny or revoke such petition, application, or benefit or terminate the permanent resident status of the alien (and the alien spouse and alien children of such immigrant), as provided in clause
(i)as of the date of such determination. Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a denial or revocation under this subparagraph. Nothing in this clause may be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with section 242. The Secretary of Homeland Security shall deny or revoke the approval of a petition, application, or benefit described in this paragraph, including the documents described in subparagraph (E)(ii), if the Secretary determines that such petition, application, or benefit was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse. If a regional center, new commercial enterprise, or job-creating entity has its designation or participation in the program under subparagraph
(H)terminated for reasons relating to fraud, intentional material misrepresentation, or criminal misuse, any person associated with such regional center, new commercial enterprise, or job-creating entity, including an alien investor, shall be permanently barred from future participation in the program under subparagraph
(H)if the Secretary of Homeland Security determines, by a preponderance of the evidence, that such person was a knowing participant in the conduct that led to the termination. If the Secretary of Homeland Security determines that the approval of a petition, application, or benefit described in this paragraph should be denied or revoked pursuant to clause (i), the Secretary shall— notify the relevant individual, regional center, or commercial entity of such determination; and deny or revoke such petition, application, or benefit or terminate the permanent resident status of the alien (and the alien spouse and alien children of such immigrant) as provided in clause
(i)as of the date of such determination. The Director of U.S. Citizenship and Immigration Services shall provide an opportunity for an administrative appellate review by the Administrative Appeals Office of U.S. Citizenship and Immigration Services of any determination made under this paragraph, including— an application for regional center designation or regional center amendment; an application for approval of a business plan under subparagraph (I); a petition by an alien investor for status as an immigrant under this paragraph; the termination or suspension of any benefit accorded under this paragraph; and any sanction imposed by the Secretary of Homeland Security pursuant to this paragraph. Subject to section 242(a)(2), and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a determination under this paragraph until the regional center, its associated entities, or the alien investor has exhausted all administrative appeals. . Except as provided in paragraph (2), the amendment made by subsection
(a)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. Subparagraph
(D)of section 203(b)(5) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5) ), as inserted by subsection (a), 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.
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