Sec. 4. EB–5 visa reforms
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Section 203(b)(5)(D) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(D) ) is amended to read as follows: In this paragraph: The term affiliated job-creating entity means any job-creating entity that is controlled, managed, or owned by any of the people involved with the regional center or new commercial enterprise under section 203(b)(5)(H)(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; does not include— assets directly or indirectly acquired by unlawful means, including any cash proceeds of indebtedness secured by such assets; capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien investor and the new commercial enterprise; capital invested with a guaranteed rate of return on the amount invested by the alien investor; or except as provided in subclause (IV), capital invested that is subject to any agreement between the alien investor and the new commercial enterprise that provides the investor with a contractual right to repayment, such as a mandatory redemption at a certain time or upon the occurrence of a certain event, or a put or sell-back option held by the alien investor, even if such contractual right is contingent on the success of the new commercial enterprise, such as having sufficient available cash flow; and includes capital invested that— is subject to a buy back option that may be exercised solely at the discretion of the new commercial enterprise; and results in the alien investor withdrawing his or her petition unless the alien investor has fulfilled his or her sustainment period and other requirements under this paragraph.
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 entities’ policies and procedures related to compliance with the requirements under this paragraph. The term job-creating entity means any organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), corporation, limited liability company, business trust, or other entity, which may be publicly or privately owned, including an entity consisting of a holding company and its wholly-owned subsidiaries or affiliates (provided that each subsidiary or affiliate is engaged in an activity formed for the ongoing conduct of a lawful business) 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
(E)and which is responsible for creating jobs to satisfy the requirement under subparagraph (A)(ii). The term new commercial enterprise means any for-profit organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), holding company and its wholly-owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business), joint venture, corporation, business trust, limited liability company, or other entity (which may be publicly or privately owned) that receives, or is established to receive, capital investment from investors under this paragraph. . Section 203(h) of the Immigration and Nationality 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 subsection (b)(5)(M), shall continue to be considered a child of the principal alien for the purpose of a subsequent immigrant petition by such alien under subsection (b)(5) if the 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 203(b)(5)(A) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b)(5)(A) ), as amended by subsection (a)(2), is further amended— in clause (i), by striking (C), and and inserting
(C)and which is expected to remain invested for not less than 2 years; and ; and in clause (ii)— by striking and create and inserting by creating ; and by inserting , United States nationals, after citizens . Section 203(b)(5) of the Immigration and Nationality Act, as amended by this section and section 2, is further amended by adding at the end the following: Any petition filed by an alien under section 204(a)(1)(H) may not be approved under this paragraph unless the Secretary of Homeland Security has searched for the alien and any associated employer of such alien on the Specially Designated Nationals List of the Department of Treasury Office of Foreign Assets Control. . The amendments made by this section shall take effect on the date of the enactment of this Act.
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