[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4259 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 4259

To facilitate foreign investment by permanently reauthorizing the EB-5 
            regional center program, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 10, 2009

Mr. Polis of Colorado introduced the following bill; which was referred 
                   to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To facilitate foreign investment by permanently reauthorizing the EB-5 
            regional center program, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Employment Benefit Act''.

SEC. 2. PERMANENT REAUTHORIZATION OF EB-5 REGIONAL CENTER PROGRAM; 
              APPLICATION FEE.

    (a) In General.--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 amended--
            (1) by striking ``pilot'' each place it appears;
            (2) in subsection (b), by striking ``for 15 years''; and
            (3) by adding at the end the following:
    ``(e) In addition to any other fees authorized by law, the 
Secretary of Homeland Security shall impose a fee of $2,500 to apply 
for designation as a regional center under this section. Fees collected 
under this subsection shall be deposited in the Treasury in accordance 
with section 286(w) of the Immigration and Nationality Act (8 U.S.C. 
1356(w)).''.
    (b) Establishment of Account; Use of Fees.--Section 286 of the 
Immigration and Nationality Act (8 U.S.C. 1356) is amended by adding at 
the end the following:
    ``(w) Immigrant Entrepreneur Regional Center Account.--
            ``(1) In general.--There is established in the general fund 
        of the Treasury a separate account, which shall be known as the 
        `Immigrant Entrepreneur Regional Center Account'. 
        Notwithstanding any other provision of law, there shall be 
        deposited as offsetting receipts into the account all fees 
        collected under section 610(b) of the Departments of Commerce, 
        Justice, and State, the Judiciary, and Related Agencies 
        Appropriations Act, 1993 (8 U.S.C. 1153 note) and any fees 
        collected in connection with forms I-526 or I-829.
            ``(2) Use of fees.--Fees collected under this section may 
        only be used by the Secretary of Homeland Security to 
        administer and operate the employment creation program 
        described in section 203(b)(5).''.
    (c) Rulemaking.--Not later than 120 days after the date of the 
enactment of this Act, the Secretary of Homeland Security shall 
prescribe regulations to implement the amendments made by this section.
    (d) Effective Date.--The amendments made by subsections (a)(3) and 
(b) shall take effect on the effective date of the regulations 
prescribed pursuant to subsection (c). The remaining amendments made by 
this section shall take effect on the date of the enactment of this 
Act.

SEC. 3. PREMIUM PROCESSING FEE FOR EB-5 IMMIGRANT INVESTORS.

    Section 286(u) of the Immigration and Nationality Act (8 U.S.C. 
1356(u)) is amended by adding at the end the following: ``In the case 
of a petition filed under section 204(a)(1)(H) for classification under 
section 203(b)(5), if the petitioner desires a guarantee of a decision 
on the petition in 60 days or less, the premium fee under this 
subsection shall be set at $2,500 and shall be deposited as offsetting 
receipts in the Immigrant Entrepreneur Regional Center Account 
established under subsection (w).''.

SEC. 4. CONCURRENT FILING OF EB-5 PETITIONS AND APPLICATIONS FOR 
              ADJUSTMENT OF STATUS.

    Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) 
is amended by adding at the end the following:
    ``(n) If, at the time a petition is filed for classification 
through a regional center under section 203(b)(5), approval of the 
petition would make a visa immediately available to the alien 
beneficiary, the alien beneficiary's adjustment application under this 
section shall be considered to be properly filed whether the 
application is submitted concurrently with, or subsequent to, the visa 
petition.''.

SEC. 5. IMPROVED SET-ASIDE FOR TARGETED EMPLOYMENT AREAS.

    Section 203(b)(5)(B) of the Immigration and Nationality Act (8 
U.S.C. 1153(b)(5)(B)) is amended as follows:
            (1) Targeted employment area defined.--Clause (ii) is 
        amended to read as follows:
                            ``(ii) Targeted employment area defined.--
                        In this paragraph, the term `targeted 
                        employment area' means, at the time a petition 
                        for classification under this paragraph is 
                        filed, any of the following:
                                    ``(I) A rural area.
                                    ``(II) An area that has experienced 
                                high unemployment (of at least 150 
                                percent of the national average rate).
                                    ``(III) A county that has had a 20 
                                percent or more decrease in population 
                                since 1970.
                                    ``(IV) An area that is within the 
                                boundaries established for purposes of 
                                a State or Federal economic development 
                                incentive program, including areas 
                                defined as Enterprise Zones, Renewal 
                                Communities and Empowerment Zones.
                                    ``(V) An area designated by a State 
                                agency to which the Governor has 
                                delegated the authority to designate 
                                targeted employment areas within the 
                                State.''.
            (2) Rural area defined.--Clause (iii) is amended by 
        striking ``other than an area within a metropolitan statistical 
        area or''.
            (3) Effect of prior determination.--Such section is amended 
        by adding at the end the following:
                            ``(iv) Effect of prior determination.--In a 
                        case in which a geographic 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 any alien 
                        seeking a visa reserved under this 
                        subparagraph.''.

SEC. 6. SET-ASIDE OF VISAS FOR REGIONAL CENTER PROGRAM.

    Section 610(b) of the Departments of Commerce, Justice, and State, 
the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 
1153 note) is amended by striking ``3,000'' and inserting ``10,000''.

SEC. 7. EXTENSION.

    Subparagraph (A) of section 216A(d)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1186b(d)(2)(A)) is amended by adding the 
following at the end thereof: ``A date specified by the applicant (but 
not later than the fourth anniversary) shall be substituted for the 
second anniversary in applying the preceding sentence if the applicant 
demonstrates that he has attempted to follow his business model in good 
faith, provides an explanation for the delay in filing the petition 
that is based on circumstances outside of his control, and demonstrates 
that such circumstances will be able to be resolved within the 
specified period.''.

SEC. 8. STUDY.

    (a) In General.--The Secretary of the Department of Homeland 
Security, in appropriate consultation with the Secretary of Commerce 
and other interested parties, shall conduct a study concerning the 
following:
            (1) Current job creation counting methodology and initial 
        projections under section 203(b)(5) of the Immigration and 
        Nationality Act (8 U.S.C. 1153(b)(5)).
            (2) How best to promote the employment creation program 
        described in such section overseas to potential immigrant 
        investors.
    (b) Report.--The Secretary of Homeland Security shall submit a 
report to the Congress not later than 1 year after the date of the 
enactment of this Act containing the results of the study conducted 
under subsection (a).

SEC. 9. FULL-TIME EQUIVALENTS.

    (a) In General.--Section 203(b)(5)(A)(ii) of the Immigration and 
Nationality Act (8 U.S.C. 1153(b)(5)(A)(ii)) is amended by inserting 
``(or full-time equivalent)'' after ``full-time''.
    (b) Definition.--Section 203(b)(5)(D) of such Act (8 U.S.C. 
1153(b)(5)(D)) is amended to read as follows:
                    ``(D) Employment-related definitions.--
                            ``(i) Full-time employment defined.--In 
                        this paragraph, the term `full-time employment' 
                        means employment in a position that requires at 
                        least 35 hours of service per week at any time, 
                        regardless of who fills the position.
                            ``(ii) Full-time equivalent employment 
                        defined.--In this paragraph, the term `full-
                        time equivalent employment' means employment 
                        representing the number of full-time employees 
                        that could have been employed if the reported 
                        number of hours worked by part-time employees 
                        had been worked by full-time employees. This 
                        shall be calculated by dividing the part-time 
                        hours paid by the standard number of hours for 
                        full-time employees.''.

SEC. 10. ELIGIBILITY FOR ADJUSTMENT OF STATUS.

    Section 245(k) of the Immigration and Nationality Act (8 U.S.C. 
1255(k)) is amended, in the matter preceding paragraph (1), by striking 
``(1), (2), or (3)'' and inserting ``(1), (2), (3), or (5)''.

SEC. 11. EXPANSION OF EB-5 ELIGIBILITY TO INCLUDE QUALIFIED IMMIGRANTS 
              WHO COMPLETE INVESTMENT AGREEMENTS.

    (a) Changes to Investment Criteria.--Section 203(b)(5)(A) of the 
Immigration and Nationality Act (8 U.S.C. 1153(b)(5)(A)) is amended--
            (1) in the matter preceding clause (i), by striking 
        ``partnership)--'' and inserting ``partnership) as follows:''
            (2) in clause (i)--
                    (A) by striking ``(i) in which'' and inserting the 
                following:
                            ``(i) A new commercial enterprise--
                                    ``(I) in which'';
                    (B) by striking ``, and'' at the end and inserting 
                a semicolon; and
                    (C) by adding at the end the following:
                                    ``(II) with respect to which such 
                                alien has completed an investment 
                                agreement with a qualified venture 
                                capital operating company for an 
                                investment in the enterprise of an 
                                amount not less than the amount 
                                specified in subparagraph (C); or
                                    ``(III) with respect to which such 
                                alien has completed an investment 
                                agreement with 1 or more angel 
                                investors for an investment in the 
                                enterprise of an amount not less than 
                                the amount specified in subparagraph 
                                (C).''; and
            (3) in clause (ii)--
                    (A) by striking ``(ii) which will'' and inserting 
                the following:
                            ``(ii) In the case of an enterprise--
                                    ``(I) described in clause (i)(I), 
                                which will'';
                    (B) by striking the period at the end and inserting 
                ``; or''; and
                    (C) by adding at the end the following:
                                    ``(II) described in subparagraph 
                                (II) or (III) of clause (i), which will 
                                benefit the United States economy and 
                                create full-time employment for not 
                                fewer than 5 United States citizens or 
                                aliens lawfully admitted for permanent 
                                residence or other immigrants lawfully 
                                authorized to be employed in the United 
                                States (other than the immigrant and 
                                the immigrant's spouse, sons, or 
                                daughters).''.
    (b) Changes to Capital Requirements.--Section 203(b)(5)(C)(i) of 
such Act (8 U.S.C. 1153(b)(5)(C)(i)) is amended by inserting after 
``$1,000,000'' the following: ``in the case of an enterprise described 
in subparagraph (A)(i)(I), $250,000 in the case of an enterprise 
described in subparagraph (A)(i)(II), and $100,000 in the case of an 
enterprise described in subparagraph (A)(i)(III)''.
    (c) Definitions.--Section 203(b)(5) of such Act (8 U.S.C. 
1153(b)(5)) is amended by adding at the end the following:
                    ``(E) Qualified venture capital operating company 
                defined.--In this paragraph, the term `qualified 
                venture capital operating company' means an entity 
                that--
                            ``(i) is registered under the Investment 
                        Company Act of 1940 (15 U.S.C. 80a-1 et seq.); 
                        or
                            ``(ii) is an investment company, as defined 
                        in subsection (a)(1) of section 3 of such Act 
                        (15 U.S.C. 80a-3), that is exempt from 
                        registration under subsection (c)(1) or (c)(7) 
                        of such section, is not registered, and--
                                    ``(I) is organized or incorporated, 
                                and domiciled, in the United States, 
                                and the majority ownership of which is 
                                composed of United States citizens or 
                                aliens lawfully admitted to the United 
                                States for permanent residence; or
                                    ``(II) is owned or controlled by an 
                                entity that is organized or 
                                incorporated, and domiciled, in the 
                                United States, and the majority 
                                ownership of that entity is composed of 
                                United States citizens or aliens 
                                lawfully admitted to the United States 
                                for permanent residence.
                    ``(F) Angel investor defined.--In this paragraph, 
                the term `angel investor' means--
                            ``(i) any individual who is a United States 
                        citizen or an alien lawfully admitted to the 
                        United States for permanent residence, or any 
                        entity wholly owned and controlled by United 
                        States citizens or aliens lawfully admitted to 
                        the United States for permanent residence; or
                            ``(ii) any entity that has made at least 5 
                        angel investments totaling at least $250,000 
                        during the 3 years preceding the completion of 
                        an investment agreement described in 
                        subparagraph (A)(i)(III).
                    ``(G) Angel investment.--In this paragraph, the 
                term `angel investment' means an investment made in a 
                commercial enterprise that, prior to such investment, 
                was not owned or controlled by--
                            ``(i) the investor;
                            ``(ii) any member of the immediate family 
                        of the investor; or
                            ``(iii) any entity owned or controlled by 
                        any member of the immediate family of the 
                        investor.''.
    (d) Conforming Amendments to Conditional Permanent Status 
Provisions.--
            (1) Termination of status if finding that qualifying 
        entrepreneurship improper.--Section 216A(b)(1)(B) of such Act 
        (8 U.S.C. 1186b(b)(1)(B)) is amended to read as follows:
                    ``(B)(i) the alien--
                            ``(I) did not invest, or was not actively 
                        in the process of investing, the requisite 
                        capital described in section 
                        203(b)(5)(A)(i)(I), or was not sustaining such 
                        actions throughout the period of the alien's 
                        residence in the United States; or
                            ``(II) did not complete an investment 
                        agreement described in subclause (II) or (III) 
                        of section 203(b)(5)(A)(i), or such agreement 
                        was not carried out or was not actively in the 
                        process of being carried out; or
                    ``(ii) the commercial enterprise did not--
                            ``(I) create the minimum number of jobs 
                        required to be created under section 
                        203(b)(5)(A)(ii); or
                            ``(II) generate a profit and at least 
                        $1,000,000 in revenue; or''.
            (2) Contents of petition.--Section 216A(d)(1) of such Act 
        (8 U.S.C. 1186b(d)(1)) is amended--
                    (A) in the matter preceding subparagraph (A), by 
                striking ``that the alien--'' and inserting ``that--'';
                    (B) by amending subparagraph (A) to read as 
                follows:
                    ``(A)(i) the alien--
                            ``(I) invested, or was actively in the 
                        process of investing, the requisite capital 
                        described in section 203(b)(5)(A)(i)(I), and 
                        sustained such actions throughout the period of 
                        the alien's residence in the United States; or
                            ``(II) completed an investment agreement 
                        described in subclause (II) or (III) of section 
                        203(b)(5)(A)(i), and such agreement was carried 
                        out or was actively in the process of being 
                        carried out; and
                    ``(ii) the commercial enterprise--
                            ``(I) created the minimum number of jobs 
                        required to be created under section 
                        203(b)(5)(A)(ii); or
                            ``(II) generated a profit and at least 
                        $1,000,000 in revenue; and''; and
                    (C) in subparagraph (B), by inserting ``the alien'' 
                before ``is otherwise''.
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