[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 616 Introduced in House (IH)]
114th CONGRESS
1st Session
H. R. 616
To amend the Immigration and Nationality Act to provide for reforms to
the EB-5 immigrant investor program, and for other purposes.
_______________________________________________________________________
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
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to provide for reforms to
the EB-5 immigrant investor 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 ``American Entrepreneurship and
Investment Act of 2015''.
SEC. 2. THE EB-5 EMPLOYMENT-CREATION IMMIGRANT INVESTOR PROGRAM.
(a) 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:
(1) Type of investment.--In subparagraph (A), by inserting
``or similar entity'' after ``including a limited
partnership''.
(2) Targeted employment area.--In subparagraph (B)--
(A) by amending clause (i) to read as follows:
``(i) In general.--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--
``(I) is investing such capital in
a targeted employment area; and
``(II) will create employment in
such targeted employment area.''; and
(B) by inserting after clause (iii) the following:
``(iv) State determinations.--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.
``(v) 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.''.
(3) Permanent authorization of regional center program.--By
adding after subparagraph (D) the following:
``(E) Employment creation regional centers.--
``(i) In general.--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--
``(I) the kinds of new commercial
enterprises that will receive capital
from aliens;
``(II) the jobs that will be
created directly or indirectly as a
result of such investments; and
``(III) other positive economic
effects such investments will have.
``(ii) Methodologies.--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.
``(iii) Special procedures.--
``(I) Preapproval of new commercial
enterprises.--The Secretary of Homeland
Security shall establish a preapproval
procedure for commercial enterprises
that--
``(aa) 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;
``(bb) in considering an
application under subclause
(I)--
``(AA) allows the
applicant to address
and cure any
deficiencies identified
by the Secretary in the
application prior to
final determination on
the application; and
``(BB) 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
``(cc) 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.
``(II) 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--
``(aa) petitions filed by
immigrants investing in the
commercial enterprise under
this subparagraph; or
``(bb) petitions filed by
such immigrants under section
216A for removal of conditional
basis.
``(iv) Processing times.--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.''.
(4) Preventing fraud in the regional center program.--In
subparagraph (E) (as added by paragraph (5)), by inserting
after clause (iii) the following:
``(v) 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--
``(I) has been found liable within
the previous 5 years for any criminal
or civil violation of any law relating
to fraud or deceit;
``(II) has been found liable at any
time for any such criminal or civil
violation if such violation involved--
``(aa) a criminal
conviction with a term of
imprisonment of at least 1
year; or
``(bb) any law or agency
regulation in connection with
the purchase or sale of a
security; or
``(III) is engaged in, has ever
been engaged in, or seeks to engage in
any--
``(aa) terrorist activity
(as defined in clauses (iii)
and (iv) of section
212(a)(3)(B));
``(bb) activity relating to
espionage or sabotage;
``(cc) illicit trafficking
in any controlled substance;
``(dd) activity related to
money laundering (as described
in section 1956 or 1957 of
title 18, United States Code);
``(ee) violation of any
statute, regulation or
Executive order regarding
foreign financial transactions
or foreign asset control; or
``(ff) human trafficking or
any other human rights offense.
The Secretary of Homeland Security shall
require such attestations and information
(including fingerprints) and shall perform such
background checks as the Secretary in the
Secretary's discretion considers appropriate to
determine whether a regional center is in
compliance with this clause. The Secretary may
terminate any regional center from the program
under this section if the Secretary determines
that the regional center is in violation of
this clause, the regional center fails to
provide such attestations and information
requested by the Secretary under this clause,
or the regional center or any person described
in this clause is engaged in fraud,
misrepresentation, criminal misuse, or threats
to national security. The Secretary shall
provide for procedures for the appeal and
review of such a termination, and any
determinations pertaining to such termination
shall be subject to review under chapter 7 of
title 5, United States Code.
``(vi) Fee for regional center
designation.--In addition to any other fees
authorized by law, the Secretary of Homeland
Security shall impose--
``(I) a fee to apply for
designation as a regional center under
this subparagraph; and
``(II) a fee for preapproval of a
new commercial enterprise as provided
under clause (iii)(I).''.
(5) EB-5 petitions.--By adding after subparagraph (E) (as
amended by paragraph (6)) the following:
``(F) EB-5 petitions.--
``(i) Processing times.--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.
``(ii) Fraud.--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.''.
(b) Conforming Amendment.--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.
SEC. 3. EB-5 VISA REFORMS.
(a) 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:
``(P) Aliens who are the spouse or a child of an
alien admitted as an employment-based immigrant under
section 203(b)(5).''.
(b) 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:
``(5) 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.''.
(c) 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).
(d) Delegation of Certain EB-5 Authority.--
(1) In general.--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.
(2) Regulations.--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.
(3) 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).
(e) 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--
(1) in subsection (k), in the matter preceding paragraph
(1), by striking ``or (3)'' and inserting ``(3), or (5)''; and
(2) by adding at the end the following:
``(n) 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.''.
(f) Technical Amendment.--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''.
SEC. 4. NUMERICAL LIMITATIONS ON INDIVIDUAL FOREIGN STATES.
(a) 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--
(1) in the paragraph heading, by striking ``and employment-
based'';
(2) by striking ``(3), (4), and (5),'' and inserting ``(3)
and (4),'';
(3) by striking ``subsections (a) and (b) of section 203''
and inserting ``section 203(a)'';
(4) by striking ``7'' and inserting ``15''; and
(5) by striking ``such subsections'' and inserting ``such
section''.
(b) Conforming Amendments.--Section 202 of the Immigration and
Nationality Act (8 U.S.C. 1152) is amended--
(1) in subsection (a)--
(A) in paragraph (3), by striking ``both
subsections (a) and (b) of section 203'' and inserting
``section 203(a)''; and
(B) by striking paragraph (5); and
(2) by amending subsection (e) to read as follows:
``(e) 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).''.
(c) Country-Specific Offset.--Section 2 of the Chinese Student
Protection Act of 1992 (8 U.S.C. 1255 note) is amended--
(1) in subsection (a), by striking ``subsection (e))'' and
inserting ``subsection (d))''; and
(2) by striking subsection (d) and redesignating subsection
(e) as subsection (d).
(d) Effective Date.--The amendments made by this section shall take
effect 1 year after the date of the enactment of this Act.
SEC. 5. 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).
SEC. 6. REGULATIONS.
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.
SEC. 7. 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.
SEC. 8. EFFECTIVE DATE.
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.
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