I 111th CONGRESS 1st Session H. R. 4259 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.

1.

Short title

This Act may be cited as the Employment Benefit Act.

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.

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)..

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. .

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. .

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.

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. .

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).

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. .

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).

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.