I 112th CONGRESS 1st Session H. R. 3692 IN THE HOUSE OF REPRESENTATIVES December 15, 2011 Mr. Schiff (for himself and Mr. Bass of New Hampshire) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To establish an entrepreneur-based immigrant category for alien entrepreneurs who have completed or are in the process of completing a degree in Science, Engineering, Math or a technology-related field.

1.

Short title

This Act may be cited as the Immigration and Naturalization Investment Ventures for Engineering, Science, and Technology in America Act of 2011 or INVEST in America Act.

2.

Conditional permanent resident status for certain STEM alien entrepreneurs, spouses, and children

The Immigration and Nationality Act is amended by inserting after section 216A the following:

216B.

Conditional permanent resident status for certain STEM alien entrepreneurs, spouses, and children

(a)

In general

(1)

Adjustment of status

Each fiscal year, the status of not more than 9,940 aliens having status under section 101(a)(15)(F)(i) or 101(a)(15)(H)(i)(b) shall be adjusted to that of an alien lawfully admitted for permanent residence if each such alien files an application, at such time and in such manner as the Secretary of Homeland Security may require, that includes information sufficient to prove that the alien has fulfilled the following requirements: (A)The alien is in the process of completing, or has completed within the most recent 3 years preceding the date of application, a graduate level degree in science, technology, engineering, math or a related academic discipline from an accredited United States college, university or other institute of higher education. (B)The alien establishes and engages in a new commercial enterprise (including a limited partnership) that is relevant to the area of study of paragraph (1). (C)The alien submits a business plan (which may be updated and modified as a result of market conditions as long as the criteria specified in this section are met), which includes the creation of no less than 5 new full-time jobs and a minimum of 90 total work months for 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) within 5 years and provides the prevailing wage level for the occupational classification in the area of employment. (D)The alien is admissible as an immigrant, except that the numerical limitations of sections 201 and 202 shall not apply to the adjustment of aliens to lawful permanent resident status under this subsection. (2)

Conditional basis for status

Notwithstanding any other provision of this Act, an alien entrepreneur (as defined in subsection (g)(1)), alien spouse, and alien child (as defined in subsection (g)(2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section. (3)

Notice of requirements

(A)

At time of obtaining permanent residence

At the time an alien entrepreneur, alien spouse, or alien child obtains permanent resident status on a conditional basis under paragraph (1), the Secretary of Homeland Security shall provide for notice to such an entrepreneur, spouse, or child respecting the provisions of this section and the requirements of subsection (c)(1) to have the conditional basis of such status renewed, and the requirements of subsection (d)(1) to have the conditional basis of such status removed. (B)

At time of required petition

In addition, the Secretary of Homeland Security shall attempt to provide notice to such an entrepreneur, spouse, or child, at or about the beginning of the 90-day period described in subsection (e)(2)(A), of the requirements of subsection (c)(1) and (d)(1). (C)

Effect of failure to provide notice

The failure of the Secretary of Homeland Security to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such an entrepreneur, spouse, or child. (b)

Termination of status if finding that qualifying entrepreneurship improper

(1)

In general

In the case of an alien entrepreneur with permanent resident status on a conditional basis under subsection (a), if the Secretary of Homeland Security determines, before the 60-month anniversary of the alien's obtaining the status of lawful admission for permanent residence, that— (A)the establishment of the commercial enterprise was intended solely as a means of evading the immigration laws of the United States; (B)(i)the alien did not establish and engage in a new commercial enterprise relevant to the graduate level degree in science, technology, engineering, math or a related academic discipline; or (ii)the alien was not sustaining the actions described in clause (i) throughout the period of the alien's residence in the United States; or (C)the alien was otherwise not conforming to the requirements of this section, then the Secretary of Homeland Security shall so notify the alien involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (and the alien spouse and alien child) involved as of the date of the determination. (2)

Hearing in removal proceeding

Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met. (c)

Requirements of Timely Petition and Interview for Renewal of Condition

(1)

In general

In order for the conditional basis established under subsection (a) for an alien entrepreneur, alien spouse, or alien child to be renewed— (A)the alien entrepreneur must submit to the Secretary of Homeland Security, during the period described in subsection (e)(2), a petition which requests the renewal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (e)(1); and (B)in accordance with subsection (e)(3), the alien entrepreneur must appear for a personal interview before an officer or employee of the Service respecting the facts and information described in subsection (e)(1). (2)

Termination of permanent resident status for failure to file petition or have personal interview

(A)

In general

In the case of an alien with permanent resident status on a conditional basis under subsection (a), if— (i)no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A); or (ii)unless there is good cause shown, the alien entrepreneur fails to appear at the interview described in paragraph (1)(B) (if required under subsection (e)(3)), the Secretary of Homeland Security shall terminate the permanent resident status of the alien (and the alien's spouse and children if it was obtained on a conditional basis under this section) as of the 30 month anniversary of the alien's lawful admission for permanent residence. (B)

Hearing in removal proceeding

In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B). (3)

Determination after petition and interview

(A)

In general

If— (i)a petition is filed in accordance with the provisions of paragraph (1)(A); and (ii)the alien entrepreneur appears at any interview described in paragraph (1)(B), the Secretary of Homeland Security shall make a determination, within 90 days of the date of the such filing or interview (whichever is later), as to whether the facts and information described in subsection (e)(1) and alleged in the petition are true with respect to the qualifying commercial enterprise. (B)

Renewal of conditional basis if favorable determination

If the Secretary of Homeland Security determines that such facts and information are true, the Secretary of Homeland Security shall so notify the alien involved and shall renew the conditional basis of the alien's status effective as of the 30 month anniversary of the alien's lawful admission for permanent residence. (C)

Termination if adverse determination

If the Secretary of Homeland Security determines that such facts and information are not true, the Secretary of Homeland Security shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien entrepreneur, alien spouse, or alien child as of the date of the determination. (D)

Hearing in removal proceeding

Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that the facts and information described in subsection (e)(1) and alleged in the petition are not true with respect to the qualifying commercial enterprise. (d)

Requirements of Timely Petition and Interview for Removal of Condition

(1)

In general

In order for the conditional basis established under subsection (a) for an alien entrepreneur, alien spouse, or alien child to be removed— (A)the alien entrepreneur must submit to the Secretary of Homeland Security, during the period described in subsection (e)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (e)(1); and (B)in accordance with subsection (e)(3), the alien entrepreneur must appear for a personal interview before an officer or employee of the Service respecting the facts and information described in subsection (e)(1). (2)

Termination of permanent resident status for failure to file petition or have personal interview

(A)

In general

In the case of an alien with permanent resident status on a conditional basis under subsection (a), if— (i)no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A); or (ii)unless there is good cause shown, the alien entrepreneur fails to appear at the interview described in paragraph (1)(B) (if required under subsection (e)(3)), the Secretary of Homeland Security shall terminate the permanent resident status of the alien (and the alien's spouse and children if it was obtained on a conditional basis under this section) as of the 60 month anniversary of the alien's lawful admission for permanent residence. (B)

Hearing in removal proceeding

In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B). (3)

Determination after petition and interview

(A)

In general

If— (i)a petition is filed in accordance with the provisions of paragraph (1)(A); and (ii)the alien entrepreneur appears at any interview described in paragraph (1)(B), the Secretary of Homeland Security shall make a determination, within 90 days of the date of the such filing or interview (whichever is later), as to whether the facts and information described in subsection (e)(1) and alleged in the petition are true with respect to the qualifying commercial enterprise. (B)

Removal of conditional basis if favorable determination

If the Secretary of Homeland Security determines that such facts and information are true, the Secretary of Homeland Security shall so notify the alien involved and shall remove the conditional basis of the alien's status effective as of the 60 month anniversary of the alien's lawful admission for permanent residence. (C)

Termination if adverse determination

If the Secretary of Homeland Security determines that such facts and information are not true, the Secretary of Homeland Security shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien entrepreneur, alien spouse, or alien child as of the date of the determination. (D)

Hearing in removal proceeding

Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that the facts and information described in subsection (e)(1) and alleged in the petition are not true with respect to the qualifying commercial enterprise. (e)

Details of Petition and Interview

(1)

Contents of petition

(A)Each petition under subsection (c)(1)(A) shall contain facts and information demonstrating that the alien— (i)established and engaged in a new commercial enterprise relevant to the graduate level degree in science, technology, engineering, math or a related academic discipline; (ii)sustained the actions described in clause (i) throughout the period of the alien's residence in the United States; and (iii)either— (I)created no less than 2 new full-time jobs for 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) for the duration of a 6-month minimum prior to the filing of the petition and provides the prevailing wage level for the occupational classification in the area of employment; or (II)invested not less than $200,000 in the new commercial enterprise. (B)Each petition under subsection (d)(1)(A) shall contain facts and information demonstrating that the alien— (i)established and engaged in a new commercial enterprise relevant to the graduate level degree in science, technology, engineering, math or a related academic discipline; (ii)sustained the actions described in clause (i) throughout the period of the alien's residence in the United States; and (iii)either— (I)created no less than 5 new full-time jobs and a minimum of 90 total work months for a 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) within 5 years and provides the prevailing wage level for the occupational classification in the area of employment; or (II)invested not less than $500,000 in the new commercial enterprise. (C)is otherwise conforming to the requirements of this section. (2)

Period for filing petition

(A)

In general

Except as provided in subparagraph (B)— (i)the petition under subsection (c)(1)(A) must be filed during the 90-day period before the 36 month anniversary of the alien's lawful admission for permanent residence; and (ii)the petition under subsection (d)(1)(A) must be filed during the 90-day period before the 60 month anniversary of the alien's lawful admission for permanent residence. (B)

Date petitions for good cause

Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Secretary of Homeland Security good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A). (C)

Filing of petitions during removal

In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Secretary of Homeland Security may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B). (3)

Personal interview

The interview under subsection (c)(1)(B) and (d)(1)(B) shall be conducted within 90 days after the date of submitting a petition under subsection (c)(1)(A) and (d)(1)(A), respectively, and at a local office of the Service, designated by the Secretary of Homeland Security, which is convenient to the parties involved. The Secretary of Homeland Security, in the Secretary of Homeland Security's discretion, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate. (f)

Treatment of Period for Purposes of Naturalization

For purposes of title III, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence. (g)

Definitions

In this section: (1)

Alien entrepreneur

The term alien entrepreneur means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) under this section. (2)

Alien spouse; alien child

The term alien spouse and the term alien child mean an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the spouse or child, respectively, of an alien entrepreneur. (3)

Commercial Enterprise

The term commercial enterprise includes a limited partnership. (4)

Investment

The term investment includes investments by venture capitalists, qualified angel investors, or the entrepreneur, and also includes reinvested profits. (5)

Full-time employment

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.

.

3.

Government Accountability Office Study

(a)

In general

Not later than 5 years after the date of enactment of this Act, and again not later than 10 years after the date of enactment, the Comptroller General of the United States shall submit to Congress a report on the entrepreneur-based immigrant category established under section 216B of the Immigration and Nationality Act. (b)

Contents

A report described in subsection (a) shall include information regarding— (1)the number of immigrant entrepreneurs who have obtained conditional permanent residency under the entrepreneur-based immigrant category; (2)the number of jobs created through the program; (3)the titles and wages of the created employment positions; (4)the length of employment for the created employment positions; (5)the number of immigrant entrepreneurs who were approved for removal of conditional permanent residence status at the end of the 5 year conditional status period; (6)the economic impact of the commercial activity generated in the United States as a result of immigrant entrepreneurs; and (7)any additional information regarding the effects of the Program.

4.

Recruit, Retain, and Invest Strategic Plan

(a)

In general

Not later than 2 years after the date of the enactment of this Act, the Secretary of Homeland Security, the Secretary of Commerce, and the Secretary of Education shall jointly submit a strategic plan to be known as the Recruitment, Retainment, and Investment Strategic Plan to Congress. (b)

Contents

The strategic plan described in subsection (a) shall study and recommend coordinated strategies to attract the highest skilled and most talented foreign nationals to immigrate to the United States in order to create American jobs and grow the United States economy.