H. R. 616
IN THE HOUSE OF REPRESENTATIVES
January 28, 2015
Mr. Polis (for himself and Mr. Amodei) introduced the following bill; which was referred to the Committee on the Judiciary
To amend the Immigration and Nationality Act to provide for reforms to the EB–5 immigrant investor program, and for other purposes.
This Act may be cited as the
American Entrepreneurship and Investment Act of 2015.
The EB–5 employment-creation immigrant investor program
Reforming the EB–5 immigrant investor program
Section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)) is amended as follows:
Type of investment
In subparagraph (A), by inserting
or similar entity after
including a limited partnership.
Targeted employment area
In subparagraph (B)—
by amending clause (i) to read as follows:
Not fewer than 5,000 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—
is investing such capital in a targeted employment area; and
will create employment in such targeted employment area.
by inserting after clause (iii) the following:
In a case in which a geographic area is determined under clause (ii) to be a targeted employment area by a delegated State agency, and such a determination has been made using acceptable data sources to include U.S. Census Bureau data (including data from the American Community Survey) and data from the Bureau of Labor Statistics (including data from the Local Area Unemployment Statistics), The Secretary of Homeland Security or her designee shall defer to a state’s designation as conclusive.
Effect of prior determination
In a case in which an area is determined under clause (ii) to be a targeted employment area, such determination shall remain in effect during the 2-year period beginning on the date of the determination for purposes of an alien seeking a visa reserved under this subparagraph.
Permanent authorization of regional center program
By adding after subparagraph (D) the following:
Employment creation regional centers
Visas under this paragraph shall be made available to qualified immigrants who participate in a program involving a regional center in the United States, which has been designated by the Secretary of Homeland Security, in consultation with the Secretary of Commerce, on the basis of a general proposal, for the promotion of economic growth, including increased exports, improved regional productivity, job creation, and 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;
the jobs that will be created directly or indirectly as a result of such investments; and
other positive economic effects such 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.
Preapproval of new commercial enterprises
The Secretary of Homeland Security shall establish a preapproval procedure for commercial enterprises that—
allows a regional center or potential regional center to apply to the Secretary for preapproval of 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)—
allows the applicant to address and cure any deficiencies identified by the Secretary in the application prior to final determination on the application; and
requires that the Secretary make final decisions on all issues under this paragraph other than those issues unique to each 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.
Deference to prior rulings
Except in the case of material change, fraud, or legal deficiency, the Secretary of Homeland Security shall give deference to, and not revisit, favorable determinations made pertaining to a commercial enterprise during the adjudication of—
petitions filed by immigrants investing in the commercial enterprise under this subparagraph; or
petitions filed by such immigrants under section 216A for removal of conditional basis.
The Secretary of Homeland Security shall make determinations on a proposal under clause (i) or an application under clause (iii) not later than 180 days after the date on which the proposal or application is filed. In the event that additional information or documentation is requested by the Secretary, the Secretary shall adjudicate the proposal or application not later than 30 days after the receipt of such information or documentation. The filing party shall be notified in writing within 30 days of the date of filing if the filing does not meet the standards for approval. If the filing does not meet such standards, the notice shall include the reasons therefore and the Secretary shall provide an opportunity for the prompt resubmission of a modified filing.
Preventing fraud in the regional center program
In subparagraph (E) (as added by paragraph (5)), by inserting after clause (iii) the following:
Bona fides of regional center principals
No person may serve as an owner, director or officer of a regional center, or hold other positions of substantive authority for the operations, management or promotion of a regional center, if the Secretary of Homeland Security determines based on substantial evidence that the person—
has been found liable within the previous 5 years for any criminal or civil violation of any law relating to fraud or deceit;
has been found liable at any time for any such criminal or civil violation if such violation involved—
a criminal conviction with a term of imprisonment of at least 1 year; or
any law or agency regulation in connection with the purchase or sale of a security; or
is engaged in, has ever been engaged in, or seeks to engage in any—
terrorist activity (as defined in clauses (iii) and (iv) of section 212(a)(3)(B));
activity relating to espionage or sabotage;
illicit trafficking in any controlled substance;
activity related to money laundering (as described in section 1956 or 1957 of title 18, United States Code);
violation of any statute, regulation or Executive order regarding foreign financial transactions or foreign asset control; or
human trafficking or any other human rights offense.
Fee for regional center designation
In addition to any other fees authorized by law, the Secretary of Homeland Security shall impose—
a fee to apply for designation as a regional center under this subparagraph; and
a fee for preapproval of a new commercial enterprise as provided under clause (iii)(I).
By adding after subparagraph (E) (as amended by paragraph (6)) the following:
The Secretary of Homeland Security shall adjudicate a petition filed pursuant to this paragraph not later than 180 days after the date on which the petition is filed. In the event that additional information or documentation is requested by the Secretary, the Secretary shall adjudicate the petition not later than 30 days after the receipt of such information or documentation. The filing party shall be notified in writing within 30 days of the date of filing if the filing does not meet the standards for approval. If the filing does not meet such standards, the notice shall include the reasons therefore and the Secretary shall provide an opportunity for the prompt resubmission of a modified filing.
The Secretary of Homeland Security, in consultation with the Commissioner of the Securities and Exchange Commission, shall develop a strategy to review securities-related materials included in any immigration petition under this paragraph, or a petition under section 216A for removal of conditional basis, when there is evidence of fraud.
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.
EB–5 visa reforms
Aliens not subject to direct numerical limitation
Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end the following:
Aliens who are the spouse or a child of an alien admitted as an employment-based immigrant under section 203(b)(5).
Age determination for children of alien investors
Section 203(h) of the Immigration and Nationality Act (8 U.S.C. 1153(h)) is amended by adding at the end the following:
Age determination for children of alien investors
An alien 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, 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’s 21st birthday.
Enhanced pay scale for certain federal employees administering the EB–5 program
The Secretary may establish, fix the compensation of, and appoint individuals to, designated critical administrative, 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).
Delegation of certain EB–5 authority
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 alien entrepreneurs) 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 paragraph (1), including regulations governing the eligibility criteria for obtaining benefits pursuant to the amendments made by this section.
Use of fees
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 paragraph (1).
Concurrent filing of EB–5 petitions and applications for adjustment of status
Section 245 (8 U.S.C. 1255) of the Immigration and Nationality Act 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:
At the time a petition is filed for classification under section 203(b)(5), if the approval of such petition 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) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), as amended by this Act, is further amended by striking
Attorney General each place it appears and inserting
Secretary of Homeland Security.
Numerical Limitations on individual foreign states
Numerical limitation to any single foreign state
Section 202(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1152(a)(2)) is amended—
in the paragraph heading, by striking
and employment- based;
(3), (4), and (5), and inserting
(3) and (4),;
subsections (a) and (b) of section 203 and inserting
7 and inserting
such subsections and inserting
Section 202 of the Immigration and Nationality Act (8 U.S.C. 1152) is amended—
in subsection (a)—
in paragraph (3), by striking
both subsections (a) and (b) of section 203 and inserting
section 203(a); and
by striking paragraph (5); and
by amending subsection (e) to read as follows:
Special rules for countries at ceiling
If it is determined that the total number of immigrant visas made available under section 202(a) to natives of any single foreign state or dependent area will exceed the numerical limitation specified in subsection (a)(2) in any fiscal year, in determining the allotment of immigrant visa numbers to natives under section 203(a), visa numbers with respect to natives of that state or area shall be allocated (to the extent practicable and otherwise consistent with this section and section 203) in a manner so that, except as provided in subsection (a)(4), the proportion of the visa numbers made available under each of paragraphs (1) through (4) of section 203(a) is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(a).
Section 2 of the Chinese Student Protection Act of 1992 (8 U.S.C. 1255 note) is amended—
in subsection (a), by striking
subsection (e)) and inserting
subsection (d)); and
by striking subsection (d) and redesignating subsection (e) as subsection (d).
The amendments made by this section shall take effect 1 year after the date of the enactment of this Act.
Applicability of Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act (15 U.S.C. 78a et seq.) shall apply to any petition under section 203(b)(5).
Not later than 180 days after the effective date of this subtitle, the Secretary of Homeland Security shall make rules to carry out this Act and the amendments made by this Act.
Consultation with Secretary of Commerce
The Secretary of Homeland Security may consult with the Secretary of Commerce in carrying out this Act and the amendments made by this Act.
This Act and the amendments made by this Act shall take effect beginning on the date that is 6 months after the date of enactment of this Act.