[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3510 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  2d Session
                                S. 3510

To facilitate the creation of American jobs by immigrant entrepreneurs.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 6, 2016

   Mr. Flake introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To facilitate the creation of American jobs by immigrant entrepreneurs.

    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 ``Attracting and Retaining 
Entrepreneurs Act''.

SEC. 2. ENTREPRENEUR NONIMMIGRANT VISAS.

    (a) Entrepreneur Nonimmigrant Category.--Section 101(a)(15) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) is amended--
            (1) in subparagraph (U)(iii), by striking ``or'' at the 
        end;
            (2) in subparagraph (V)(ii)(II), by striking the period at 
        the end and inserting ``; or''; and
            (3) by adding at the end the following:
                    ``(W) in accordance with the definitions set forth 
                in section 203(b)(6)(A), a qualified entrepreneur who 
                has demonstrated that, during the 3-year period ending 
                on the date on which the alien filed an initial 
                petition for nonimmigrant status described in this 
                subparagraph--
                            ``(i) a qualified venture capitalist, a 
                        qualified angel investor, a qualified 
                        government entity, a qualified community 
                        development financial institution, qualified 
                        startup accelerator, or such other type of 
                        entity or investors, as determined by the 
                        Secretary, or any combination of such entities 
                        or investors, has made a qualified investment 
                        or combination of qualified investments of not 
                        less than $100,000 in the alien's United States 
                        business entity; or
                            ``(ii) the alien's United States business 
                        entity--
                                    ``(I) has created not fewer than 3 
                                qualified jobs; and
                                    ``(II) during the 2-year period 
                                ending on such filing date has 
                                generated not less than $250,000 in 
                                annual revenue arising from business 
                                conducted in the United States.''.
    (b) Admission of Entrepreneur Nonimmigrants.--Section 214 of the 
Immigration and Nationality Act (8 U.S.C. 1184) is amended--
            (1) in subsection (b), by striking ``(other than'' and all 
        that follows through ``such section)'' and inserting ``(other 
        than a nonimmigrant described in subparagraph (H)(i)(b), 
        (H)(i)(c), (L), (V), or (W) of section 101(a)(15))''; and
            (2) by adding at the end the following:
    ``(s) Entrepreneur Nonimmigrant Visas.--
            ``(1) Definitions.--The definitions set forth in section 
        203(b)(6)(A) shall apply to this subsection.
            ``(2) Initial period of authorized admission.--The initial 
        period of authorized status as a nonimmigrant described in 
        section 101(a)(15)(W) shall be 3 years.
            ``(3) Renewal of admission.--Subject to paragraph (4), the 
        period of authorized nonimmigrant status described in paragraph 
        (2) may be renewed for additional 3-year periods if--
                    ``(A) during the most recent 3-year period in which 
                the alien was granted such status, the alien's United 
                States business entity created not fewer than 3 
                qualified jobs; and
                    ``(B)(i) during such 3-year period, a qualified 
                venture capitalist, a qualified angel investor, a 
                qualified government entity, a qualified community 
                development financial institution, qualified startup 
                accelerator, or such other type of entity or investors, 
                as determined by the Secretary, or any combination of 
                such entities or investors, has made a qualified 
                investment or combination of qualified investments of 
                not less than $250,000 to the alien's United States 
                business entity; or
                    ``(ii) during the 2-year period ending on the date 
                on which the alien petitioned for an extension, the 
                alien's United States business entity has generated not 
                less than $250,000 in annual revenue arising from 
                business conducted within the United States.
            ``(4) Waiver of renewal requirements.--The Secretary may 
        renew an alien's status as a nonimmigrant described in section 
        101(a)(15)(W) for not more than 1 year at a time, up to an 
        aggregate of 2 years, if the alien--
                    ``(A) does not meet the criteria under paragraph 
                (3); and
                    ``(B) meets the criteria established by the 
                Secretary, in consultation with the Secretary of 
                Commerce, for approving renewals under this subsection, 
                which shall include a determination that--
                            ``(i) the alien has made substantial 
                        progress in meeting such criteria; and
                            ``(ii) such renewal is economically 
                        beneficial to the United States.
            ``(5) Attestation.--The Secretary shall require an alien 
        seeking status as a nonimmigrant described in section 
        101(a)(15)(W) to attest, under penalty of perjury, that the 
        alien meets the application criteria.
            ``(6) W-1 visa fee.--In addition to processing fees, the 
        Secretary shall collect a $1,000 fee from each nonimmigrant 
        admitted under section 101(a)(15)(W).''.

SEC. 3. ENTREPRENEUR IMMIGRANT VISAS.

    Section 203(b) of the Immigration and Nationality Act (8 U.S.C. 
1153(b)) is amended--
            (1) by redesignating paragraph (6) as paragraph (7); and
            (2) by inserting after paragraph (5) the following:
            ``(6) Entrepreneur immigrants.--
                    ``(A) Definitions.--In this paragraph and in 
                sections 101(a)(15)(W) and 214(s):
                            ``(i) Qualified angel investor.--The term 
                        `qualified angel investor' means an individual 
                        or organized group of individuals investing 
                        directly or through a legal entity--
                                    ``(I) each of whom is an accredited 
                                investor (as defined in section 
                                230.501(a) of title 17, Code of Federal 
                                Regulations, or any similar successor 
                                regulation) investing the funds owned 
                                by such individual or organized group 
                                in a qualified entrepreneur's United 
                                States business entity;
                                    ``(II)(aa) if an individual, is a 
                                citizen of the United States or an 
                                alien lawfully admitted for permanent 
                                residence; or
                                    ``(bb) if an organized group or 
                                legal entity, a majority of the 
                                individuals investing through such 
                                group or entity are citizens of the 
                                United States or aliens lawfully 
                                admitted for permanent residence; and
                                    ``(III) each of whom in the 
                                previous 3 years has made qualified 
                                investments totaling not less than 
                                $50,000 (or such higher amount 
                                determined appropriate by the 
                                Secretary) in United States business 
                                entities that are less than 5 years 
                                old.
                            ``(ii) Qualified community development 
                        financial institution.--The term `qualified 
                        community development financial institution' 
                        means an entity that has been certified by the 
                        CDFI Fund under section 1805.201 45D(c) of 
                        title 12, Code of Federal Regulations, or any 
                        similar successor regulation.
                            ``(iii) Qualified entrepreneur.--The term 
                        `qualified entrepreneur' means an individual 
                        who--
                                    ``(I) has a significant ownership 
                                interest, which need not constitute a 
                                majority interest, in a United States 
                                business entity;
                                    ``(II) is employed in a senior 
                                executive position at such entity;
                                    ``(III) submits a business plan to 
                                U.S. Citizenship and Immigration 
                                Services; and
                                    ``(IV) had a substantial role in 
                                the founding or early-stage growth and 
                                development of such entity.
                            ``(iv) Qualified government entity.--The 
                        term `qualified government entity' means an 
                        agency or instrumentality of the United States 
                        or of a State, local, or tribal government.
                            ``(v) Qualified investment.--The term 
                        `qualified investment'--
                                    ``(I) means an investment in a 
                                qualified entrepreneur's United States 
                                business entity that is--
                                            ``(aa) a purchase from such 
                                        entity of equity or convertible 
                                        debt issued by such entity;
                                            ``(bb) a secured loan;
                                            ``(cc) a convertible debt 
                                        note;
                                            ``(dd) a public securities 
                                        offering;
                                            ``(ee) a research and 
                                        development award from a 
                                        qualified government entity to 
                                        the United States business 
                                        entity;
                                            ``(ff) another investment 
                                        determined appropriate by the 
                                        Secretary; or
                                            ``(gg) a combination of any 
                                        of the investments described in 
                                        items (aa) through (ff); and
                                    ``(II) does not include an 
                                investment from--
                                            ``(aa) such qualified 
                                        entrepreneur;
                                            ``(bb) the parents, spouse, 
                                        son, or daughter of such 
                                        qualified entrepreneur; or
                                            ``(cc) any corporation, 
                                        company, association, firm, 
                                        partnership, society, or joint 
                                        stock company over which such 
                                        qualified entrepreneur has a 
                                        substantial ownership interest.
                            ``(vi) Qualified job.--The term `qualified 
                        job' means a full-time position at a United 
                        States business entity owned by a qualified 
                        entrepreneur that--
                                    ``(I) is located in the United 
                                States;
                                    ``(II) has been filled for at least 
                                2 years by a United States citizen or 
                                legal permanent resident who is not the 
                                qualified entrepreneur or the spouse, 
                                son, or daughter of the qualified 
                                entrepreneur; and
                                    ``(III) is compensated at a wage 
                                level that is commensurate with 
                                similarly situated employees in 
                                comparable positions in the 
                                metropolitan statistical area of the 
                                employment.
                            ``(vii) Qualified startup accelerator.--The 
                        term `qualified startup accelerator' means a 
                        corporation, company, association, firm, 
                        partnership, society, or joint stock company 
                        that--
                                    ``(I) is organized under the laws 
                                of the United States or of any State 
                                and conducts business in the United 
                                States;
                                    ``(II) in the ordinary course of 
                                business, provides a program of 
                                training, mentorship, and logistical 
                                support to assist entrepreneurs in 
                                growing their businesses;
                                    ``(III) is managed by individuals, 
                                the majority of whom are citizens of 
                                the United States or aliens lawfully 
                                admitted for permanent residence;
                                    ``(IV)(aa) regularly acquires an 
                                equity interest in companies that 
                                participate in its programs in which 
                                the majority of the capital so invested 
                                is committed from individuals who are 
                                United States citizens or aliens 
                                lawfully admitted for permanent 
                                residence, or from entities organized 
                                under the laws of the United States or 
                                any State; or
                                    ``(bb) is an entity that has 
                                received not less than $250,000 in 
                                funding from a qualified government 
                                entity or entities during the previous 
                                5 years and regularly awards grants to 
                                companies that participate in its 
                                programs (in which case, such grant 
                                shall be treated as a qualified 
                                investment for purposes of clause 
                                (iv));
                                    ``(V) during the previous 5 years, 
                                has acquired an equity interest in, or, 
                                in the case of an entity described in 
                                subclause (IV)(bb), regularly made 
                                grants to, not fewer than 10 United 
                                States business entities that--
                                            ``(aa) have participated in 
                                        its programs; and
                                            ``(bb)(AA) have each 
                                        secured at least $100,000 in 
                                        initial investments; or
                                            ``(BB) during any 2-year 
                                        period following the date of 
                                        such acquisition, have 
                                        generated not less than 
                                        $500,000 in aggregate annual 
                                        revenue within the United 
                                        States;
                                    ``(VI) has its primary location in 
                                the United States; and
                                    ``(VII) satisfies such other 
                                criteria as the Secretary may 
                                establish.
                            ``(viii) Qualified venture capitalist.--The 
                        term `qualified venture capitalist' means an 
                        entity that--
                                    ``(I)(aa) is a venture capital 
                                operating company (as defined in 
                                section 2510.3-101(d) of title 29, Code 
                                of Federal Regulations or any successor 
                                to such regulation); or
                                    ``(bb) has management rights, as 
                                defined in, and to the extent required 
                                by, such section 2510.3-101(d) or 
                                successor regulation, in its portfolio 
                                companies;
                                    ``(II) has capital commitments of 
                                not less than $10,000,000; and
                                    ``(III) has an investment adviser 
                                that--
                                            ``(aa) is registered under 
                                        section 203 of the Investment 
                                        Advisers Act of 1940 (15 U.S.C. 
                                        80b-3);
                                            ``(bb) has its primary 
                                        office location in the United 
                                        States;
                                            ``(cc) is directly or 
                                        indirectly owned by 
                                        individuals, the majority of 
                                        whom are citizens of the United 
                                        States or aliens lawfully 
                                        admitted for permanent 
                                        residence in the United States;
                                            ``(dd) has been advising 
                                        such entity or other similar 
                                        funds or entities for at least 
                                        2 years; and
                                            ``(ee) has advised such 
                                        entity or a similar fund or 
                                        entity with respect to at least 
                                        2 investments of not less than 
                                        $500,000 made by such entity or 
                                        similar fund or entity during 
                                        each of the most recent 2 
                                        years.
                            ``(ix) Secretary.--Except as otherwise 
                        specifically provided, the term `Secretary' 
                        means the Secretary of Homeland Security.
                            ``(x) Senior executive position.--The term 
                        `senior executive position' includes the 
                        position of chief executive officer, chief 
                        technology officer, and chief operating 
                        officer.
                            ``(xi) United states business entity.--The 
                        term `United States business entity' means any 
                        corporation, company, association, firm, 
                        partnership, society, or joint stock company 
                        that is organized under the laws of the United 
                        States or any State and that conducts business 
                        in the United States that is not--
                                    ``(I) a private fund (as defined in 
                                202(a) of the Investment Advisers Act 
                                of 1940 (15 U.S.C. 80b-2));
                                    ``(II) a commodity pool (as defined 
                                in section 1a of the Commodity Exchange 
                                Act (7 U.S.C. 1a));
                                    ``(III) an investment company (as 
                                defined in section 3 of the Investment 
                                Company Act of 1940 (15 U.S.C. 80a-3); 
                                or
                                    ``(IV) an issuer that would be an 
                                investment company without an exemption 
                                provided in--
                                            ``(aa) section 3(c) of the 
                                        Investment Company Act of 1940 
                                        (15 U.S.C. 80a-3(c)); or
                                            ``(bb) section 270.3a-7 of 
                                        title 17, Code of Federal 
                                        Regulations, or any similar 
                                        successor regulation.
                    ``(B) In general.--Not more than 10,000 visas shall 
                be available during each fiscal year for qualified 
                immigrants seeking to enter the United States for the 
                purpose of creating new businesses, as described in 
                this paragraph.
                    ``(C) Eligibility.--An alien who is a qualified 
                entrepreneur is eligible for a visa under this 
                paragraph if--
                            ``(i)(I) the alien maintained valid 
                        nonimmigrant status in the United States for at 
                        least 2 years;
                            ``(II) during the 3-year period ending on 
                        the date the alien files an initial petition 
                        for such status under this section--
                                    ``(aa)(AA) the alien has a 
                                significant ownership in a United 
                                States business entity that has created 
                                not fewer than 5 qualified jobs; and
                                    ``(BB) a qualified venture 
                                capitalist, a qualified angel investor, 
                                a qualified government entity, a 
                                qualified community development 
                                financial institution, qualified 
                                startup accelerator, or such other 
                                entity or type of investors, as 
                                determined by the Secretary, or any 
                                combination of such entities or 
                                investors, has devoted a qualified 
                                investment or combination of qualified 
                                investments of not less than $500,000 
                                to the alien's United States business 
                                entity; or
                                    ``(bb)(AA) the alien has a 
                                significant ownership interest in a 
                                United States business entity that has 
                                created not fewer than 5 qualified 
                                jobs; and
                                    ``(BB) during the 2-year period 
                                ending on such petition date, has 
                                generated not less than $500,000 in 
                                annual revenue within the United 
                                States; and
                            ``(III) not more than 2 other aliens have 
                        received nonimmigrant status under this section 
                        on the basis of an alien's ownership of such 
                        United States business entity; or
                            ``(ii)(I) the alien maintained valid 
                        nonimmigrant status in the United States for at 
                        least 3 years before the date on which the 
                        alien filed an application for such status;
                            ``(II) the alien holds an advanced degree 
                        in a field of science, technology, engineering, 
                        or mathematics that has been approved by the 
                        Secretary;
                            ``(III) during the 3-year period ending on 
                        the date on which the alien files an initial 
                        petition for such status under this section--
                                    ``(aa)(AA) the alien has a 
                                significant ownership interest in a 
                                United States business entity that has 
                                created not fewer than 4 qualified 
                                jobs; and
                                    ``(BB) a qualified venture 
                                capitalist, a qualified angel investor, 
                                a qualified government entity, a 
                                qualified community development 
                                financial institution, qualified 
                                startup accelerator, or such other 
                                entity or type of investors, as 
                                determined by the Secretary, or any 
                                combination of such entities or 
                                investors, has devoted a qualified 
                                investment or combination of qualified 
                                investments of not less than $500,000 
                                in total to the alien's United States 
                                business entity; or
                                    ``(bb)(AA) the alien has a 
                                significant ownership interest in a 
                                United States business entity that has 
                                created not fewer than 3 qualified 
                                jobs; and
                                    ``(BB) during the 2-year period 
                                ending on such petition date, the 
                                entity has generated not less than 
                                $500,000 in annual revenue within the 
                                United States; and
                            ``(IV) not more than 3 other aliens have 
                        received nonimmigrant status under this 
                        paragraph on the basis of an alien's ownership 
                        of such United States business entity.
                    ``(D) New business plan requirement.--
                            ``(i) In general.--A qualified entrepreneur 
                        shall submit a new business plan to U.S. 
                        Citizenship and Immigration Services if there 
                        has been a material change to the business plan 
                        referred to in subparagraph (A)(ii)(III).
                            ``(ii) Presumption.--There shall be a 
                        presumption in favor of approval for any new 
                        business plan submitted pursuant to clause (i).
                    ``(E) Attestation.--The Secretary may require an 
                alien seeking a visa under this paragraph to attest, 
                under penalties of perjury, to the alien's 
                qualifications.''.

SEC. 4. ADMINISTRATION AND OVERSIGHT.

    (a) Rulemaking.--
            (1) In general.--Not later than 16 months after the date of 
        the enactment of this Act, the Secretary of Homeland Security, 
        in consultation with the Secretary of Commerce, the 
        Administrator of the Small Business Administration, and heads 
        of other relevant Federal agencies and departments, shall 
        promulgate regulations--
                    (A) to carry out the amendments made by this Act; 
                and
                    (B) to ensure that such amendments are implemented 
                in a manner that is consistent with--
                            (i) the protection of national security; 
                        and
                            (ii) the promotion of United States 
                        economic growth, job creation, and 
                        competitiveness.
            (2) Modification of dollar amounts.--
                    (A) In general.--The Secretary of Homeland Security 
                may prescribe regulations that increase or decrease any 
                dollar amount specified in--
                            (i) section 101(a)(15)(W) of the 
                        Immigration and Nationality Act, as added by 
                        section 2(a);
                            (ii) section 214(s) of such Act, as added 
                        by section 2(b); or
                            (iii) section 203(b)(6) of such Act, as 
                        added by section 3.
                    (B) Automatic adjustment.--Unless a dollar amount 
                referred to in subparagraph (A) relating to a petition 
                for a nonimmigrant visa under section 101(a)(15)(W) of 
                the Immigration and Nationality Act or an immigrant 
                visa under section 203(b)(6) of such Act is adjusted by 
                the Secretary of Homeland Security pursuant to such 
                subparagraph, such dollar amount shall automatically 
                adjust--
                            (i) on January 1, 2021, by the percentage 
                        change in the Consumer Price Index (CPI-U) 
                        during fiscal year 2020; and
                            (ii) on every fifth subsequent January 1 by 
                        the percentage change in the CPI-U during the 
                        previous 5 fiscal years.
    (b) Other Authority.--The Secretary of Homeland Security, in the 
Secretary's unreviewable discretion, may deny or revoke the approval of 
a petition seeking an immigrant visa under section 203(b)(6) of the 
Immigration and Nationality Act, as added by section 3, or any other 
petition, application, or benefit based upon the previous or concurrent 
filing or approval of a petition for classification of an alien under 
such section, if the Secretary determines that the approval or 
continuation of such petition, application, or benefit is contrary to 
the national interest of the United States or for other good cause.
    (c) Reports.--Once every 3 years, the Secretary of Homeland 
Security shall submit a report to Congress that includes--
            (1) a description of the implementation of this Act and the 
        amendments made by this Act;
            (2) the number and percentage of entrepreneurs who have met 
        the thresholds for nonimmigrant renewal and adjustment to green 
        card status under the amendments made by this Act;
            (3) an analysis of the program's economic impact, 
        including--
                    (A) job and revenue creation;
                    (B) increased investments; and
                    (C) growth within business sectors and regions;
            (4) a description and breakdown of the types of businesses 
        that have been created by entrepreneurs granted nonimmigrant or 
        immigrant status;
            (5) for each report other than the Secretary's initial 
        report, a description of the percentage of the businesses 
        initially created by the entrepreneurs granted immigrant and 
        nonimmigrant status under this Act and the amendments made by 
        this Act, that are still in operation; and
            (6) any recommendations for improving the program 
        established under this Act and the amendments made by this Act.
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