[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2778 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 2778
To reform the EB-5 Immigrant Investor Program, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 5, 2019
Mr. Rounds (for himself, Mr. Graham, and Mr. Cornyn) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To reform 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Immigrant Investor
Program Reform Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Invest in American job creation.
Sec. 3. Transparency.
Sec. 4. Treatment of period for purposes of naturalization.
Sec. 5. Concurrent filing of EB-5 petitions and applications for
adjustment of status.
Sec. 6. Parole status for petitioners and dependents awaiting
availability of an immigrant visa.
SEC. 2. INVEST IN AMERICAN JOB CREATION.
(a) In General.--Section 203(b)(5) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)(5)) is amended to read as follows:
``(5) Employment creation.--
``(A) In general.--Visas shall be made available,
in a number not to exceed 7.1 percent of such worldwide
level, to qualified immigrants seeking to enter the
United States for the purpose of investing in a new
commercial enterprise, directly or in a new commercial
enterprise associated with a regional center under
subparagraph (B)--
``(i) in which such alien has invested or,
is actively in the process of investing,
capital in an amount not less than the amount
specified in subparagraph (D); and
``(ii) that will benefit the United States
economy and create full-time employment for not
fewer than 10 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) Regional center program.--Visas made
available under subparagraph (A) shall be made
available through September 30, 2025, to qualified
immigrants pooling their investments with 1 or more
additional qualified immigrants in a new commercial
enterprise associated with a regional center in the
United States that has been designated by the Secretary
of Homeland Security on the basis of a proposal for the
promotion of economic growth, including prospective job
creation and increased domestic capital investment.
``(C) Reservation for targeted employment areas.--
``(i) In general.--Of the number of visas
allocated under subparagraph (A), 30 percent
shall be reserved in each fiscal year before
fiscal year 2026 for qualified immigrants who
invest in a new commercial enterprise in a
targeted employment area, of which 50 percent
shall be reserved for rural areas.
``(ii) Unused visas.--At the end of each
fiscal year, any unused visa numbers that were
reserved under this subparagraph shall be made
generally available in the next fiscal year to
immigrants who have filed applications for
classification as an immigrant investor under
subparagraph (A).
``(D) Amount of capital required.--
``(i) In general.--Except as otherwise
provided in this subparagraph, the amount of
capital required under subparagraph (A) shall
be $1,100,000.
``(ii) Minimum investment for targeted
employment areas.--Subject to clause (iii), the
amount of capital required under subparagraph
(A) in the case of a targeted employment area
shall be $1,000,000.
``(iii) Program improvement fee.--Each
immigrant investor shall pay, to the Treasury
of the United States, a program improvement fee
of $50,000 in conjunction with each I-526
petition submitted under this paragraph after
the date of the enactment of the Immigrant
Investor Program Reform Act.
``(iv) Adjustment of required capital.--
``(I) Automatic adjustment.--
Beginning on October 1, 2022 and every
3 years thereafter, the qualifying
investment amounts under clauses (i)
and (ii) shall be automatically
adjusted based on the cumulative annual
percentage change in the unadjusted All
Items Consumer Price Index for All
Urban Consumers (CPI-U) for the U.S.
City Average reported by the Bureau of
Labor Statistics compared to such
amounts in September 2019. The
qualifying investment amount will be
rounded down to the nearest $100,000.
``(II) Notice of adjustment.--
``(aa) In general.--
Immediately after each
adjustment under subclause (I),
the Secretary of Homeland
Security shall publish a
technical amendment in the
Federal Register that includes
the amounts set forth in
clauses (i) and (ii), as
adjusted by subclause (I).
``(bb) Applicability.--Any
petition for classification of
an alien as an immigrant
investor under this paragraph
that is filed on or after
October 1 in the year an
automatic adjustment to the
minimum qualifying investment
amount occurs under subclause
(I) shall be subject to such
adjusted amount.
``(E) Regional center program.--
``(i) Processing.--
``(I) In general.--In processing
petitions under section 204(a)(1)(H)
for classification under this
paragraph, the Secretary of Homeland
Security--
``(aa) may process
petitions in a manner and order
established by the Secretary;
and
``(bb) shall deem such
petitions to include records
previously filed with the
Secretary under subparagraph
(F) if the alien petitioner
certifies that such records are
incorporated by reference into
the alien's petition.
``(II) Priority.--In processing
applications for designation as a
regional center, amendments, specific
investment offerings, and annual
certifications submitted under this
paragraph, the Secretary may give
priority, upon the payment of a $50,000
premium processing fee, to such
applications and certifications,
notwithstanding other pending
applications or petitions filed under
other employment-based visa categories.
``(III) Premium processing of eb-5
regional center applications.--
``(aa) In general.--An
entity seeking designation as
an EB-5 regional center or an
amendment of a previously
approved regional center may,
upon the payment of a $50,000
premium processing fee, request
that the Secretary process the
application within 120 days.
``(bb) Response to premium
processing request.--If the
Secretary cannot render a final
decision on the application or
petition for which premium
processing was requested, as
evidenced by an approval notice
or denial notice, the Secretary
shall refund the premium
processing fee.
``(IV) Expedited processing of
targeted employment area petitions.--A
petition relating to a project in a
targeted employment area, including
individual investor petitions, will be
subject to expedited review without
payment of an additional premium
processing fee.
``(ii) Establishment of regional centers.--
A regional center shall operate within a
defined, contiguous, and limited geographic
area, which shall be described in the proposal
and be consistent with the purpose of
concentrating pooled investment within such
area. The proposal to establish a regional
center shall--
``(I) demonstrate that the pooled
investment will have a significant
economic impact on such geographic
area;
``(II) include reasonable
predictions, supported by economically
and statistically valid forecasting
tools, concerning--
``(aa) the amount of
investment that will be pooled;
``(bb) the types of
commercial enterprises that
will receive such investments;
``(cc) the details of the
jobs that will be created
directly or indirectly as a
result of such investments; and
``(dd) other positive
economic effects such
investments will have; and
``(III) include a description of
the policies and procedures that are
reasonably designed to ensure program
compliance; and
``(IV) include a description of the
policies and procedures in place that
are reasonably designed to monitor new
commercial enterprises, third-party
promoters (including migration agents),
and any affiliated job-creating entity
to ensure compliance with--
``(aa) all applicable laws,
regulations, and executive
orders of the United States,
including immigration laws,
criminal laws, and securities
laws; and
``(bb) all securities laws
of each State in which
securities offerings will be
conducted, investment advice
will be rendered, or the
offerors or offerees reside.
``(iii) Job creation.--
``(I) In general.--In determining
compliance with subparagraph (A)(ii),
the Secretary of Homeland Security
shall permit aliens seeking admission
based on an investment in a new
commercial enterprise associated with a
regional center under this subparagraph
to rely on economically and
statistically valid methodologies for
determining the number of jobs created
by the program, including--
``(aa) jobs estimated to
have been created directly,
which may be verified using
such methodologies, provided
that the Secretary may request
additional evidence to verify
that the directly created jobs
satisfy the requirements under
subparagraph (A)(ii); and
``(bb) consistent with this
subparagraph, jobs estimated to
have been created indirectly
through revenues generated from
increased exports, improved
regional productivity, job
creation, and increased
domestic capital investment
resulting from the program.
``(iv) Amendments.--The Secretary of
Homeland Security shall--
``(I) require regional centers to
provide 120 days advance notice to the
Secretary of significant proposed
changes to their organizational
structure, ownership, or
administration, including the sale of
such centers or other arrangements in
which individuals not previously
subject to the requirements under
subparagraph (H) become involved with
the regional center, before any such
proposed changes may take effect unless
exigent circumstances are present in
which case the regional center shall
provide notice to the Secretary not
later than 5 business days after such
change; and
``(II) notwithstanding the pendency
of a determination described in
subclause (II), adjudicate business
plans under subparagraph (F) and
petitions under section 204(a)(1)(H).
``(v) Sanctions.--
``(I) Violations.--The Secretary
shall sanction a regional center, in
accordance with subclause (II), if--
``(aa) the regional center
fails to submit an annual
statement, attestation,
certification, or other
information required under this
paragraph;
``(bb) the regional center
fails to pay the fee required
under subparagraph (J)(ii)
within 30 days after the date
on which such fee is due or,
after being fined, fails to pay
the fine within 90 days after
the date on which such fine is
due;
``(cc) the Secretary
determines that the regional
center knowingly submitted, or
caused to be submitted, a
statement, attestation,
certification, or any other
information under this
paragraph that contained an
untrue statement of material
fact or omitted to state a
material fact necessary in
order to make the statement,
attestation, certification or
provision of information, in
light of the circumstances
under which they were made, not
misleading;
``(dd) the Secretary
determines a person involved
with the regional center, an
associated new commercial
enterprise, or any affiliated
job-creating entity was
knowingly involved by the
regional center in violation of
subparagraph (H); or
``(ee) the Secretary
determines that the regional
center is otherwise conducting
itself in a manner inconsistent
with its designation,
including--
``(AA) conduct that
fails to demonstrate
that the regional
center is operating
reliably or with
integrity;
``(BB) failure to
promote economic growth
in compliance with this
paragraph; or
``(CC) any willful,
undisclosed, and
material deviation by
new commercial
enterprises from any
filed business plan for
such commercial
enterprises.
``(II) Authorized sanctions.--The
Secretary shall establish a graduated
set of sanctions based on the severity
of the violations referred to in
subclause (I), including 1 or more of
the following:
``(aa) Fines equal to not
more than 10 percent of the
total capital invested by alien
investors in the regional
center's new commercial
enterprises or job-creating
entities, which--
``(AA) may not be
paid from any of such
alien investor's
capital investments;
and
``(BB) shall be
deposited into the EB-5
Integrity Fund
established under
subparagraph (J)(i).
``(bb) Temporary suspension
from participation in the
regional center program, which
may be lifted by the Secretary
if the individual or entity
cures the alleged violation
after being provided such an
opportunity by the Secretary.
``(cc) Permanent bar from
program participation for 1 or
more individuals or entities
associated with the regional
center or new commercial
enterprise or affiliated job-
creating entity.
``(dd) Termination of the
regional center designation.
``(F) Application for approval of an investment in
a commercial enterprise.--
``(i) In general.--The director of a
regional center shall file an application with
the Secretary of Homeland Security for each
investment offering through an associated
commercial enterprise. An alien may not file a
petition for classification under this
paragraph by reason of investment in such
offering until after such application has been
approved.
``(ii) Contents.--Each application
submitted under clause (i) shall include--
``(I) a comprehensive business plan
for a specific capital investment
project;
``(II) a credible economic analysis
regarding estimated job creation that
is based upon economically and
statistically valid methodologies;
``(III) any documents filed with
the Securities and Exchange Commission
under the Securities Act of 1933 (15
U.S.C. 77a et seq.) or with the
securities regulator of any State, as
required by law;
``(IV) any investment and offering
documents, including subscription,
investment, partnership, and operating
agreements, private placement
memoranda, term sheets, biographies for
management, officers, directors, and
any person with similar
responsibilities, the description of
the business plan to be provided to
potential alien investors, and
marketing materials used or to be used
in connection with the offering as of
the time of the filing, which shall
contain references, as appropriate,
to--
``(aa) any investment risks
associated with the new
commercial enterprise and the
affiliated job-creating entity;
``(bb) any conflicts of
interest that exist or may
arise among the regional
center, new commercial
enterprise, job-creating
entity, or the principals,
attorneys, or individuals
responsible for recruitment or
promotion of such entities;
``(cc) any pending
litigation or bankruptcy, or
adverse judgments or bankruptcy
orders issued during the most
recent 10-year period, in the
United States or abroad,
affecting the regional center,
new commercial enterprise, any
affiliated job-creating entity,
or any other enterprise in
which any principal of the
aforementioned entities held
majority ownership at the time;
and
``(dd)(AA) any fees,
ongoing interest, or other
compensation paid or to be paid
by regional center or new
commercial enterprise to
agents, finders, or broker
dealers involved in the
offering;
``(BB) a description of the
services performed, or which
will be performed, by such
person to entitle the person to
such fees, interest, or
compensation; and
``(CC) the name and contact
information of any such person,
if known at the time of filing;
and
``(V) a description of the policies
and procedures, including those related
to internal and external due diligence,
reasonably designed to cause the
regional center, new commercial
enterprise, and any affiliated job-
creating entity, their agents,
employees, advisors, and attorneys, and
any persons in active concert or
participation with the regional center,
new commercial enterprise, or any
affiliated job-creating entity comply,
as applicable, with the securities laws
of the United States and the laws of
the applicable States in connection
with the offer, purchase, or sale of
its securities.
``(iii) Effect of approval of an
application for an investment in a regional
center's commercial enterprise.--The approval
of an application under this subparagraph shall
be binding for purposes of the adjudication of
subsequent petitions seeking classification
under this paragraph by immigrants investing in
the same offering described in such
application, and of petitions filed under
section 216A by the same immigrants, except in
the case of--
``(I) fraud;
``(II) misrepresentation;
``(III) criminal misuse;
``(IV) a threat to public safety or
national security;
``(V) a material change that
affects eligibility;
``(VI) other evidence affecting
program eligibility that was not
disclosed by the applicant during the
adjudication process; or
``(VII) a material mistake of law
or fact in the prior adjudication.
``(iv) Site visits.--The Secretary shall--
``(I) perform site visits to
regional centers; and
``(II) perform at least 1 site
visit to each new commercial enterprise
or affiliated job-creating entity,
which shall include a review for
evidence of direct job creation in
accordance with subparagraph
(E)(iii)(I).
``(G) Regional center annual statements.--
``(i) In general.--The director of each
regional center designated under subparagraph
(E) shall annually submit a statement, in a
manner prescribed by the Secretary of Homeland
Security, which includes--
``(I) a certification stating that
the regional center, any associated new
commercial enterprises, and any
affiliated job-creating entity is in
compliance with clauses (i) and (ii) of
subparagraph (H);
``(II) a certification described in
subparagraph (I)(ii)(II);
``(III) a certification stating
that the regional center is in
compliance with subparagraph (K);
``(IV) a description of any pending
material litigation or bankruptcy
proceedings, or litigation or
bankruptcy proceedings resolved during
the preceding fiscal year, involving
the regional center, any associated new
commercial enterprises, or any job-
creating entities;
``(V) an accounting of all foreign
investor capital invested in the
regional center, new commercial
enterprise, or affiliated job-creating
entity;
``(VI) for each new commercial
enterprise associated with the regional
center--
``(aa) an accounting of the
aggregate capital invested in
the new commercial enterprise
and any affiliated job-creating
entity by alien investors under
this paragraph for each capital
investment project being
undertaken by the new
commercial enterprise;
``(bb) a description of how
the capital described in item
(aa) is being used to execute
each capital investment project
in the filed business plan or
plans;
``(cc) evidence that the
account requirements under
subparagraph (D) have been met;
``(dd) evidence that 100
percent of the capital
described in item (aa) has been
committed to each capital
investment project;
``(ee) detailed evidence of
the progress made toward the
completion of each capital
investment project;
``(ff) an accounting of the
aggregate direct jobs created
or preserved;
``(gg) an accounting of all
fees, including administrative
fees, loan monitoring fees,
loan management fees,
commissions and similar
transaction-based compensation,
collected from alien investors
by the regional center, any
associated new commercial
enterprises, any job-creating
entities or any promoter,
finder, broker-dealer or other
entity engaged by any such
entity to locate individual
investors;
``(hh) any documentation
referred to in subparagraph
(F)(i)(IV) if there has been a
material change during the
preceding fiscal year; and
``(ii) a certification by
the regional center that such
statements are accurate; and
``(VII) a description of the
regional center's policies and
procedures that are designed to enable
the regional center, any associated new
commercial enterprises, and any job-
creating entities to comply with
applicable Federal and State labor
laws.
``(ii) Amendment of annual statements.--The
Secretary--
``(I) shall require each regional
center to amend or supplement the
annual statement required under clause
(i) if the Secretary determines that
such statement is deficient; and
``(II) may require the regional
center to amend or supplement such
annual statement if the Secretary
determines that such an amendment or
supplement is appropriate.
``(iii) Record keeping.--
``(I) In general.--Each regional
center shall make and preserve, during
the 5-year period beginning on the last
day of the Federal fiscal year in which
any transactions occurred, books,
ledgers, records, and other
documentation from the regional center,
new commercial enterprise, or
affiliated job-creating entity that was
used to support--
``(aa) any claims,
evidence, or certifications
contained in the regional
center's annual statements
under subparagraph (G); and
``(bb) associated petitions
by aliens seeking
classification under this
section or removal of
conditions under section 216A.
``(II) Availability.--All of the
books, ledgers, records, and other
documentation described in subclause
(I) shall be made available to the
Secretary upon request.
``(iv) Verifications by securities and
exchange commission.--The certifications
required under clause (i) shall be verified by
the Securities and Exchange Commission.
``(H) Bona fides of persons involved with the eb-5
program.--
``(i) In general.--No person may be a
person involved with a regional center, new
commercial enterprise, or affiliated job-
creating entity who--
``(I) has been found by a court of
competent jurisdiction, or any final
order of the Securities and Exchange
Commission, or a State securities
regulator to have committed--
``(aa) a criminal or civil
offense involving fraud or
deceit within the previous 10
years;
``(bb) a civil offense
involving fraud or deceit that
resulted in a liability in
excess of $1,000,000; or
``(cc) a crime for which
the person was convicted and
was sentenced to a term of
imprisonment of more than 1
year;
``(II) is subject to a final order,
for the duration of any penalty imposed
by such order, of a State securities
commission (or an agency or officer of
a State who performs similar
functions), a State authority that
supervises or examines banks, savings
associations, or credit unions, a State
insurance commission (or an agency of
or officer of a State who performs
similar functions), an appropriate
Federal banking agency, the Commodity
Futures Trading Commission, the
Securities and Exchange Commission, a
financial self-regulatory organization
recognized by the Securities and
Exchange Commission, or the National
Credit Union Administration, which is
based on a violation of any law or
regulation that--
``(aa) prohibits
fraudulent, manipulative,
deceptive, or negligent
conduct; or
``(bb) bars the person
from--
``(AA) association
with an entity
regulated by such
commission, authority,
agency, or officer;
``(BB) appearing
before such commission,
authority, agency, or
officer;
``(CC) engaging in
the business of
securities, insurance,
or banking; or
``(DD) engaging in
savings association or
credit union
activities;
``(III) is engaged in, has ever
been engaged in, or seeks to engage
in--
``(aa) any illicit
trafficking in any controlled
substance or in any listed
chemical (as defined in section
102 of the Controlled
Substances Act (21 U.S.C.
802));
``(bb) any activity
relating to espionage,
sabotage, or theft of
intellectual property;
``(cc) any activity related
to money laundering (as
described in section 1956 or
1957 of title 18, United States
Code);
``(dd) any terrorist
activity;
``(ee) any activity
constituting or facilitating
human trafficking or a human
rights offense;
``(ff) any activity
described in section
212(a)(3)(E); or
``(gg) the violation of any
statute, regulation, or
Executive order regarding
foreign financial transactions
or foreign asset control; or
``(IV)(aa) is, or during the
preceding 10 years has been, included
on the Department of Justice's List of
Currently Disciplined Practitioners; or
``(bb) during the preceding 10
years, has received a reprimand or
otherwise been publicly disciplined for
conduct related to fraud or deceit by
any bar association or other self-
regulating professional association of
which the person is or was a member; or
``(V) is debarred from
participation in the program under this
paragraph pursuant to subparagraph (S).
``(ii) Foreign involvement in the eb-5
program.--
``(I) Lawful status required.--An
individual may not be involved with a
regional center unless the individual--
``(aa) is a national of the
United States; or
``(bb) has been lawfully
admitted for permanent
residence and is not the
subject of removal proceedings.
``(II) Foreign governments.--
``(aa) In general.--Except
as provided in item (bb), no
agency, official, or other
similar entity or
representative of a foreign
government may provide capital
to, or be directly or
indirectly involved with the
ownership or administration of,
a regional center, a new
commercial enterprise, or
affiliated job-creating entity.
``(bb) Exception.--A
foreign or domestic investment
fund or other investment
vehicle that is wholly or
partially owned, directly or
indirectly, by a bona fide
foreign sovereign wealth fund
or a foreign state-owned
enterprise otherwise permitted
to do business in the United
States may be involved with the
ownership, but not the
administration, of a job-
creating entity that is not an
affiliated job-creating entity.
``(III) Review of transactions.--
Any transaction involving a regional
center, new commercial enterprise, or
affiliated job-creating entity that is
a `covered transaction' (as defined in
section 721(a)(4) of the Defense
Production Act of 1950 (50 U.S.C.
4565(a)(4))) is subject to review by
the Committee on Foreign Investment in
the United States.
``(IV) Rulemaking.--Not later than
180 days after the date of the
enactment of the Immigrant Investor
Program Reform Act, the Secretary of
Homeland Security, in consultation with
the Secretary of the Treasury and the
Secretary of Commerce, shall issue
regulations implementing subclauses (I)
and (II).
``(iii) Information required.--
``(I) In general.--Beginning on the
date of the enactment of the Immigrant
Investor Program Reform Act, the
Secretary of Homeland Security shall
require such attestations and
information, including the submission
of fingerprints or other biometrics to
the Federal Bureau of Investigation,
and shall perform such criminal record
checks and other background and
database checks with respect to a
regional center, new commercial
enterprise, and any affiliated job-
creating entity, and persons involved
with such entities, to determine
whether such entities are in compliance
with clauses (i) and (ii).
``(II) Effect of noncompliance.--
The Secretary, after the completion of
the background checks described in
subclause (I), shall notify a regional
center, new commercial enterprise, or
affiliated job-creating entity whether
any individual involved with such
entities is not in compliance with
clause (i) or (ii). If the regional
center, new commercial enterprise, or
affiliated job-creating entity fails to
discontinue the prohibited individual's
involvement with such entity within 30
days after receiving a notification
under this subclause, the regional
center, new commercial enterprise, or
affiliated job-creating entity shall be
deemed to have knowledge that such
person is in violation of clause (i) or
(ii).
``(I) Compliance with securities laws.--
``(i) Jurisdiction.--
``(I) In general.--The United
States has jurisdiction, including
subject matter jurisdiction, over the
purchase or sale of any security
offered or sold by any regional center
or any party associated with a regional
center for purposes of the securities
laws.
``(II) Compliance with regulation
s.--For purposes of section 5 of the
Securities Act of 1933 (15 U.S.C. 77e),
a regional center or any party
associated with a regional center is
not precluded from offering or selling
a security pursuant to Regulation S (17
C.F.R. 230.901 et seq.) to the extent
that such offering or selling otherwise
complies with such regulation.
Subclause (I) may not be construed to
modify any existing regulations or
interpretations of the Securities and
Exchange Commission related to the
application of section 15 of the
Securities Exchange Act of 1934 (15
U.S.C. 78o) to foreign broker dealers.
``(ii) Regional center certifications
required.--
``(I) Initial certification.--The
Secretary of Homeland Security may not
approve an application for regional
center designation or a regional center
amendment unless the regional center
certifies that the regional center is
in compliance with, and has policies
and procedures (including those related
to internal and external due diligence)
reasonably designed to confirm, as
applicable, that the regional center,
any associated new commercial
enterprises, any job-creating entities,
and all persons involved with such
entities are and will remain in
compliance with the securities laws of
the United States and of any State in
which--
``(aa) the offer, purchase,
or sale of securities was
conducted;
``(bb) the issuer of
securities was located; or
``(cc) the investment
advice was provided by the
regional center, any associated
new commercial enterprises, any
job-creating entities, or
persons involved with such
entities.
``(II) Reissue.--A regional center
shall annually reissue a certification
described in subclause (I), in
accordance with subparagraph (G), to
certify compliance with clause (iii) by
stating that--
``(aa) the certifier is in
a position to have knowledge of
the offers, purchases, and
sales of securities or the
provision of investment advice
by the regional center, any
associated new commercial
enterprises, any job-creating
entities, and all persons
involved with such entities;
``(bb) all such offers,
purchases, and sales of
securities or the provision of
investment advice complied with
the securities laws of the
United States and the
securities laws of any State in
which the offer, purchase, or
sale of securities was
conducted, the issuer of
securities was located, or the
investment advice was provided;
and
``(cc) records, data, and
information related to such
offers, purchases, and sales
have been maintained.
``(III) Effect of noncompliance.--
If a regional center, through its due
diligence, discovered, during the
previous fiscal year, that the regional
center or any party associated with the
regional center was not in compliance
with the securities laws of the United
States or the securities laws of any
State in which the securities
activities were conducted by any party
associated with the regional center,
the certifier shall--
``(aa) describe the
activities that led to
noncompliance;
``(bb) describe the actions
taken to remedy the
noncompliance; and
``(cc) certify that the
regional center, any associated
new commercial enterprises, any
job-creating entities, and all
persons involved with such
entities are currently in
compliance.
``(IV) Due diligence
investigation.--Any certification
provided by a certifier under this
clause with respect to an entity in
which the certifier is not in a
position of substantive authority shall
be made to the best of the certifier's
knowledge after due diligence
investigation.
``(iii) Oversight required.--Each regional
center shall--
``(I) monitor and supervise all
offers, purchases, and sales of, and
investment advice relating to
securities made by the regional center,
any associated new commercial
enterprises, any job-creating entities,
and all persons involved with such
entities to confirm compliance with the
securities laws of the United States;
``(II) maintain records, data, and
information relating to all such
offers, purchases, sales, and
investment advice during the 5-year
period beginning on the date of
creation of such records, data, or
information, which shall be made
available to the Secretary upon
request; and
``(III) make the records, data, and
information described in subclause (II)
available to the Secretary upon
request.
``(iv) Savings provision.--Nothing in this
subparagraph may be construed to impair or
limit the authority of the Securities and
Exchange Commission under the Federal
securities laws or any State securities
regulator under State securities laws.
``(J) EB-5 integrity fund.--
``(i) Establishment.--There is established
in the United States Treasury a special fund,
which shall be known as the EB-5 Integrity Fund
(referred to in this subparagraph as the
`Fund'). Amounts deposited into the Fund shall
be available to the Secretary of Homeland
Security until expended for the purposes set
forth in clause (iii).
``(ii) Fees.--
``(I) Annual fee.--On April 1,
2020, and on January 1 of each year
thereafter, the Secretary of Homeland
Security shall--
``(aa) except as provided
in item (bb), collect a fee of
$20,000 from each regional
center designated under
subparagraph (E);
``(bb) collect a fee of
$10,000 from each regional
center designated under
subparagraph (E) that is a not-
for-profit regional center, or
has 20 or fewer total investors
in the preceding fiscal year in
its new commercial enterprises;
and
``(cc) deposit the fees
collected pursuant to items
(aa) and (bb) into the Fund.
``(II) Petition fee.--Beginning on
April 1, 2020, the Secretary shall
collect a fee of $1,000 with each
petition filed under section
204(a)(1)(H) for classification under
subparagraph (E) and deposit each fee
collected under this subclause into the
Fund.
``(III) Increases.--The Secretary
may prescribe such regulations as may
be necessary to increase the dollar
amounts under this clause to ensure
that the Fund is sufficient to carry
out the purposes set forth in clause
(iii). Increases under this subclause
may not exceed 100 percent in any 12-
month period.
``(iii) Permissible uses of fund.--The
Secretary of Homeland Security shall--
``(I) use not less than \1/3\ of
the amounts deposited into the Fund to
conduct audits and site visits (with or
without notice);
``(II) use not less than \1/3\ of
the amounts deposited into the Fund for
investigations based outside of the
United States, including--
``(aa) monitoring and
investigating program-related
events and promotional
activities; and
``(bb) ensuring the
compliance of alien investors
with subparagraph (L);
``(III) use amounts deposited into
the Fund as the Secretary determines to
be necessary, including to monitor
compliance with the requirements under
this paragraph;
``(IV) use amounts deposited into
the Fund to conduct interviews of the
owners, officers, directors, managers,
partners, agents, employees, promoters,
and attorneys of regional centers, new
commercial enterprises, and job-
creating entities; and
``(V) use amounts deposited into
the Fund--
``(aa) to detect and
investigate fraud or other
crimes; and
``(bb) to determine whether
regional centers, new
commercial enterprises, any
job-creating entities, and
alien investors (and their
alien spouses and alien
children) comply with the
immigration laws.
``(iv) Report.--The Secretary of Homeland
Security shall submit an annual report to the
Committee on the Judiciary of the Senate and
the Committee on the Judiciary of the House of
Representatives that describes how amounts in
the Fund were expended during the previous
fiscal year.
``(K) Direct and third-party promoters.--
``(i) Rules and standards.--Direct and
third-party promoters of a regional center, any
new commercial enterprise, or any affiliated
job-creating entity shall comply with the rules
and standards prescribed by the Secretary of
Homeland Security and any applicable Federal or
State securities laws, to oversee promotion of
any offering of securities related to the
immigrant investor program under this
paragraph, including--
``(I) registration with U.S.
Citizenship and Immigration Services,
which--
``(aa) may be limited to
identifying and contact
information of such promoter
and confirmation of the
existence of the written
agreement required under clause
(iii);
``(bb) may not include any
requirement that U.S.
Citizenship and Immigration
Services approve the
registration of such promoter;
and
``(cc) may permit the list
of such registered promoters to
be made publicly available;
``(II) certification by each
promoter that such promoter is not
ineligible under subparagraph (H)(i);
``(III) guidelines for accurately
representing the visa process to
foreign investors; and
``(IV) permissible fee
arrangements, if applicable.
``(ii) Compliance.--Each regional center,
new commercial enterprise, and affiliated job-
creating entity shall maintain a written
agreement between or among such entities and
each direct or third-party promoter operating
on behalf of such entities or associated issuer
that outlines the rules and standards
prescribed under clause (i).
``(iii) Disclosure.--Each petition filed
under section 204(a)(1)(H) shall include a
disclosure by the regional center, new
commercial enterprise, or affiliated job-
creating entity, as applicable, acknowledged by
the investor, that reflects all fees, ongoing
interest, and other compensation paid or to be
paid to any person in connection with the
investment, including compensation to agents,
finders, or broker dealers involved in the
offering, to the extent not already
specifically identified in the business plan
filed under subparagraph (F).
``(L) Source of funds.--
``(i) In general.--An alien investor shall
demonstrate that the capital required under
subparagraph (A) and any amounts used to pay
administrative costs and fees associated with
the alien's investment were obtained from a
lawful source and through lawful means.
``(ii) Required information.--The Secretary
of Homeland Security shall require that an
alien investor's petition under this paragraph
contain, as applicable--
``(I) business and tax records,
including--
``(aa) foreign business
registration records, if
applicable;
``(bb) corporate or
partnership tax returns (or tax
returns of any other entity in
any form filed in any country
or subdivision of such
country), and personal tax
returns including income,
franchise, property (whether
real, personal, or intangible),
or any other tax returns of any
kind, filed during the past 7
years, or another period to be
determined by the Secretary to
ensure that the investment is
obtained from a lawful source
of funds, with any taxing
jurisdiction in or outside the
United States by or on behalf
of the alien investor, if
applicable; and
``(cc) evidence identifying
any other source of capital or
administrative fees;
``(II) evidence related to monetary
judgments against the alien investor,
including certified copies of any
judgments, and evidence of all pending
governmental civil or criminal actions,
governmental administrative
proceedings, and any private civil
actions involving possible monetary
judgments against the alien investor
from any court in or outside the United
States; and
``(III) the identity of all persons
who transfer into the United States, on
behalf of the investor--
``(aa) any funds that are
used to meet the capital
requirement under subparagraph
(A); and
``(bb) any funds that are
used to pay administrative
costs and fees associated with
the alien's investment.
``(iii) Gift and loan restrictions.--
``(I) In general.--Gifted and
borrowed funds may not be counted
toward the minimum capital investment
requirement under subparagraph (C)
unless such funds--
``(aa) were gifted or
loaned to the alien investor in
good faith; and
``(bb) were not gifted or
loaned to circumvent any
limitations imposed on
permissible sources of capital
under this subparagraph.
``(II) Records requirement.--If a
significant portion of the capital
invested under subparagraph (A) was
gifted or loaned to the alien investor,
the Secretary shall require that the
alien investor's petition under this
paragraph includes the records
described in subclauses (I) and (II) of
clause (ii) from the donor or, if other
than a bank, the lender.
``(M) Petition for classification as an immigrant
investor.--
``(i) Filing.--An alien seeking
classification as an immigrant investor under
this paragraph shall file a petition with the
Secretary of Homeland Security, with the
appropriate filing fees (including the EB-5
Fraud Prevention and Detection Fee required
under section 286(w)(3)), and with such
evidence as the Secretary shall prescribe. The
approval of a petition for classification as an
immigrant investor under this paragraph does
not, by itself, establish that the alien is
entitled to immigrant status.
``(ii) Treatment of children.--A child of
an alien investor on the date on which a
petition is filed under clause (i) shall
continue to be considered a child until the
removal of the conditional basis of the child's
lawful permanent resident status unless--
``(I) the petition on which the
child's status is based is revoked; or
``(II) the child's lawful permanent
resident status is otherwise
terminated.
``(iii) Decisions.--
``(I) Withholding adjudication.--
The Secretary of Homeland Security may
suspend adjudication of any petition
for classification under this paragraph
until all background and security
checks and any national security or law
enforcement investigation relating to
such application or the alien seeking
classification is completed.
``(II) Denials and revocations.--
``(aa) Notice of denial or
revocation.--The Secretary
shall provide an alien investor
with a notice of the
Secretary's denial of a
petition or revocation of an
approved petition under this
subparagraph.
``(bb) Denial for fraud,
misrepresentation, and criminal
misuse.--The Secretary shall
deny a petition for
classification of an alien as
an immigrant investor under
this paragraph if the Secretary
determines that the petition
was predicated on or involved
fraud, deceit, intentional
material misrepresentation, or
criminal misuse.
``(cc) National security or
public safety.--The Secretary
may deny a petition or revoke
an approved petition under this
section if the Secretary
determines that approval of
such a petition would be
contrary to the national
interests of the United States
for reasons relating to
national security or public
safety.
``(III) Judicial review.--
Notwithstanding any other provision of
law (statutory or nonstatutory),
including section 2241 of title 28,
United States Code, or any other habeas
corpus provision, and sections 1361 and
1651 of such title, no court shall have
jurisdiction to review a denial or
revocation under this subparagraph.
Nothing in this clause may be construed
as precluding review of constitutional
claims or questions of law raised upon
a petition for review filed with an
appropriate court of appeals in
accordance with section 242.
``(N) Threats to the national interest.--The
Secretary of Homeland Security shall deny or revoke the
approval of a petition, application, certification, or
benefit under this paragraph, including the documents
described in subclause (II), if the Secretary
determines, in the Secretary's unreviewable discretion,
that the approval of such petition, application, or
benefit is contrary to the national interest of the
United States for reasons relating to threats to public
safety or national security.
``(O) Administrative appellate review.--
``(i) In general.--The Director of U.S.
Citizenship and Immigration Services shall
provide an opportunity for an administrative
appellate review by the Administrative Appeals
Office of U.S. Citizenship and Immigration
Services of any determination made under this
paragraph, including--
``(I) an application for regional
center designation or regional center
amendment;
``(II) an application for approval
of a business plan under subparagraph
(F);
``(III) a petition by an alien
investor for status as an immigrant
under this paragraph;
``(IV) the termination or
suspension of any benefit accorded
under this paragraph; and
``(V) any sanction imposed by the
Secretary of Homeland Security under
this paragraph.
``(ii) Judicial review.--Subject to section
242(a)(2), and notwithstanding any other
provision of law (statutory or nonstatutory),
including section 2241 of title 28, United
States Code, any other habeas corpus provision,
and sections 1361 and 1651 of such title, no
court shall have jurisdiction to review a
determination under this subparagraph
(O)(i)(III) until the regional center, its
associated entities, or the alien investor has
exhausted all administrative appeals.
``(P) Treatment of investors if a regional center
has been terminated.--
``(i) In general.--Upon termination or
debarment, as applicable, from the program
under this paragraph of a regional center, new
commercial enterprise, or affiliated job-
creating entity under this paragraph, and
except as provided in clauses (iii) and (vi) of
subparagraph (S), the conditional permanent
residence of an alien who has been admitted to
the United States pursuant to section
216A(a)(1) based on an investment in a
terminated regional center, new commercial
enterprise, or affiliated job-creating entity
shall remain valid or continue to be
authorized, as applicable, in accordance with
this subparagraph.
``(ii) New regional center or investment.--
The conditional permanent resident status of an
alien described in clause (i) shall be
terminated on the date that is 180 days after
the termination from the program under this
paragraph of a regional center, a new
commercial enterprise, or a job-creating entity
unless--
``(I) if a regional center was
terminated--
``(aa) the new commercial
enterprise is associated with
an approved regional center;
``(bb) the alien makes a
qualifying investment in
another commercial enterprise
associated with an approved
regional center; or
``(cc) the alien makes a
qualifying investment in
another commercial enterprise
under this paragraph not
associated with a regional
center; or
``(II) if a new commercial
enterprise or affiliated job-creating
entity was debarred, the alien invests
in another commercial enterprise
associated with an approved regional
center.
``(iii) Removal of conditions.--Aliens
described in subclause (I)(bb), (I)(cc), or
(II) of clause (ii) who have obtained
conditional permanent residence before making
the subsequent investment shall be eligible to
have their conditions removed pursuant to
section 216A beginning on the date that is 2
years after the date of the subsequent
investment.
``(Q) Fraud, misrepresentation, and criminal
misuse.--
``(i) Denial or revocation.--The Secretary
of Homeland Security shall deny or revoke the
approval of a petition, application, or benefit
described in this paragraph, including the
documents described in subparagraph
(M)(iv)(II), if the Secretary determines that
such petition, application, or benefit was
predicated on or involved fraud, deceit,
intentional material misrepresentation, or
other criminal activity.
``(ii) Notice.--If the Secretary determines
that the approval of a petition, application,
or benefit described in this paragraph should
be denied or revoked pursuant to clause (i),
the Secretary shall--
``(I) notify the relevant
individual, regional center, or
commercial entity of such
determination; and
``(II) deny or revoke such
petition, application, or benefit or
terminate the permanent resident status
of the alien (and the alien spouse and
alien children of such immigrant) as of
the date of such determination.
``(R) Debarment.--
``(i) Suspension or termination.--A
regional center, new commercial enterprise,
affiliated job-creating entity or any person
involved with any such entity may be suspended
or terminated from participating in the program
under this paragraph--
``(I) for failing to comply with
subparagraphs (G), (H), (I), or (J);
``(II) for fraud, intentional
material misrepresentation, or criminal
misuse;
``(III) for reasons related to
public safety or national security; or
``(IV) for engaging in any activity
described in paragraph (2) or (3) of
section 212(a).
``(ii) Direct or third-party promoters.--If
the Secretary determines that a direct or
third-party promoter has violated subparagraph
(K)(i), the Secretary shall suspend or
permanently bar such individual from
participation in the immigrant investor program
under this paragraph.
``(iii) Temporary or permanent bars.--Any
person, including an immigrant investor, who
the Secretary determines, by a preponderance of
the evidence, was a knowing or negligent
participant in the conduct that led to the
suspension or termination under clause (i) or
(ii) may be temporarily or permanently barred
from future participation in the immigrant
investor program under this paragraph.
``(iv) Effect of debarment.--A person who
is suspended, terminated, or barred under this
subparagraph--
``(I) may not serve as a basis for
eligibility for any application,
petition, or other benefit request
under this paragraph;
``(II) may not file an application,
petition, or other benefit request
under this paragraph;
``(III) may not be involved with
any regional center, new commercial
enterprise or any affiliated job-
creating entity; and
``(IV) may not have any authority,
connection, or other form of
association with the offer, sale,
purchase or promotion of any securities
offered by an entity described in
subclause (III) in connection with the
immigrant investor program under this
paragraph.
``(v) Denial or revocation.--Subject to
subparagraph (P), the Secretary may deny or
revoke any pending or approved application,
petition, or other benefit request under this
paragraph in connection with the suspension,
termination, or bar of any person under this
subparagraph that was filed by the suspended,
terminated, or barred person or relies on such
person for eligibility.
``(vi) Termination of status.--If the
Secretary has reason to believe an alien was a
knowing participant in the conduct that led to
a suspension or termination under this
subparagraph, the Secretary shall--
``(I) notify the alien of such
belief; and
``(II) subject to section
216A(b)(2), terminate the permanent
resident status of the alien (and the
alien's spouse and child) as of the
date of such determination.
``(S) Conflict of interest.--An individual may not
contract to provide services as a loan monitor for a
business or project with which the individual was
associated while employed by a regional center.
``(T) Definitions.--In this paragraph:
``(i) Affiliated job-creating entity.--The
term `affiliated job-creating entity' means any
organization that--
``(I) is formed in the United
States for the ongoing conduct of
lawful business, including a
partnership (whether limited or
general), corporation, limited
liability company, or other entity that
receives, or is established to receive,
capital investment from alien investors
or a new commercial enterprise under
the regional center program described
in subparagraph (E); and
``(II) is responsible for the
creation of jobs to satisfy the
requirement under subparagraph (A)(ii).
``(ii) Capital.--The term `capital'--
``(I) means cash (including the
cash proceeds of indebtedness that are
fully secured by the petitioner's
assets) and all real, personal, or
mixed tangible assets owned and
controlled by the alien investor, or
held in trust for the benefit of the
alien and to which the alien has
unrestricted access;
``(II) shall be valued at fair
market value in United States dollars,
in accordance with Generally Accepted
Accounting Principles or other standard
accounting practice adopted by the
Securities and Exchange Commission, at
the time such capital is invested under
this paragraph; and
``(III) does not include assets
directly or indirectly acquired by
unlawful means, including any cash
proceeds of indebtedness secured by
such assets.
``(iii) Certifier.--The term `certifier'
means a person providing a certification for
any entity under this paragraph who is in a
position of substantive authority for the
management or operations of the entity,
including a principal executive officer or a
principal financial officer, with knowledge of
such entity's policies and procedures related
to compliance with the requirements under this
paragraph.
``(iv) 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.
``(v) New commercial enterprise.--The term
`new commercial enterprise' means any for-
profit organization formed in the United States
within 5 years after the earlier of the
application for approval of an investment or
the submission of a petition under this
paragraph, for the ongoing conduct of lawful
business, including a partnership (whether
limited or general), corporation, limited
liability company, or other entity that
receives, or is established to receive, capital
investment from investors under this paragraph.
``(vi) Persons involved with a regional
center, new commercial enterprise, or
affiliated job-creating entity.--The term
`persons involved' with respect to a regional
center, a new commercial enterprise, or any
affiliated job-creating entity means a person
directly or indirectly in a position of
substantive authority to make operational or
managerial decisions over or to legally bind
such entities. A person may be in a position of
substantive authority if the person serves as
the principal, representative, administrator,
owner, officer, board member, manager,
executive, or general partner of the regional
center, new commercial enterprise, or
affiliated job-creating entity, respectively.
``(vii) Rural area.--The term `rural area'
means any area that, based on the most recent
decennial census of the United States--
``(I) is outside of the boundary of
any city or town with a population of
20,000 or more people; and
``(II)(aa) is outside of a
metropolitan statistical area; or
``(bb) is within any census tract
that is greater than 100 square miles
in area and has a population density of
fewer than 100 people per square mile.
``(viii) Targeted employment area.--The
term `targeted employment area' means--
``(I) a qualified opportunity zone
(as designated under section 1400Z-1 of
the Internal Revenue Code of 1986;
``(II) a rural area; or
``(III) an area within the
geographic boundaries of any military
installation that was closed before the
filing of an application for
classification as an immigrant investor
under this paragraph, based upon a
recommendation by a Defense Base
Closure and Realignment Commission.''.
(b) Effective Dates.--
(1) In general.--Except as provided in paragraph (2), the
amendment made by subsection (a), shall take effect on the date
that is 90 days after the date of the enactment of this Act.
(2) Exceptions.--Subparagraphs (E)(iv) and (L) of section
203(b)(5) of the Immigration and Nationality Act (8 U.S.C.
1153(b)(5)) shall not apply to a petition that--
(A) was filed by an alien investor under such
section 203(b)(5) before the date of the enactment of
this Act; or
(B) is filed under section 216A of such Act (8
U.S.C. 1186b) if the underlying petition filed under
section 203(b)(5) of such Act was filed before the date
of the enactment of this Act.
(c) GAO Report.--Not later than December 31, 2021, the Comptroller
General of the United States shall submit a report to the Committee on
the Judiciary of the Senate and the Committee on the Judiciary of the
House of Representatives that describes--
(1) the economic benefits of the regional center program
established under section 203(b)(5) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)(5)), including the steps
taken by U.S. Citizenship and Immigration Services to verify
job creation;
(2) the extent to which U.S. Citizenship and Immigration
Services ensures compliance by regional center participants
with their obligations under the immigrant investor program;
(3) the extent to which U.S. Citizenship and Immigration
Services has maintained records of regional centers and
associated commercial enterprises, including annual statements
and certifications;
(4) the steps taken by U.S. Citizenship and Immigration
Services to verify the source of funds, as required under
section 203(b)(5)(L) of the Immigration and Nationality Act, as
added by subsection (a);
(5) the extent to which U.S. Citizenship and Immigration
Services collaborates with other Federal and law enforcement
agencies, particularly to detect illegal activity and threats
to national security related to the regional center program;
(6) the extent to which U.S. Citizenship and Immigration
Services has prevented fraud and abuse in regional center
activities, including the designation of targeted employment
areas in areas that otherwise have high employment;
(7) the extent to which U.S. Citizenship and Immigration
Services has used its authority to sanction, suspend, bar, or
terminate regional centers or individuals affiliated with
regional centers;
(8) the steps taken to oversee direct and third-party
promoters under section 203(b)(5)(K) of the Immigration and
Nationality Act, as added by subsection (a);
(9) the extent to which employees of the Department of
Homeland Security have complied with the ethical standards and
transparency requirements set forth in section 3; and
(10) the amounts expended from the EB-5 Integrity Fund
established under section 203(b)(5)(J) of the Immigration and
Nationality Act, as added by subsection (a).
(d) Inspector General Report.--Not later than December 31, 2021,
the Inspector General of the Intelligence Community, in coordination
with the Inspector General of the Department of Homeland Security and
after consultation with relevant Federal agencies, including U.S.
Immigration and Customs Enforcement, shall submit a report to the
Committee on the Judiciary of the Senate and the Committee on the
Judiciary of the House of Representatives regarding the immigrant visa
program set forth in section 203(b)(5) of the Immigration and
Nationality Act, as amended by subsection (a) that describes--
(1) the vulnerabilities within the program that may
undermine the national security of the United States;
(2) the actual or potential use of the program to
facilitate export of sensitive technology;
(3) the actual or potential use of the program to
facilitate economic espionage;
(4) the actual or potential use of the program by foreign
government agents; and
(5) the actual or potential use of the program to
facilitate terrorist activity, including funding terrorist
activity or laundering terrorist funds.
(e) Review of Job Creation Methodologies.--Not later than 1 year
after the date of the enactment of this Act, the Secretary of Homeland
Security, in consultation with the Bureau of Economic Analysis of the
Department of Commerce, or another component within the Department of
Commerce, as determined by the Secretary of Commerce, shall issue
regulations to determine economically and statistically valid general
economic methodologies that comply with section 203(b)(5)(A)(ii) of the
Immigration and Nationality Act, as amended by subsection (a).
(f) Department of Homeland Security Report.--Not later than 18
months after the date of the enactment of this Act, and annually
thereafter, the Secretary of Homeland Security shall submit a report to
Congress regarding--
(1) the geographic location and types of completed and
pending capital investment projects within the scope of
business plans (whether approved or waiting approval) submitted
pursuant to section 203(b)(5)(F) of the Immigration and
Nationality Act, as added by subsection (a); and
(2) the amount of foreign investments raised and expected
to be raised to finance projects referred to in paragraph (1).
SEC. 3. TRANSPARENCY.
(a) In General.--Employees of the Department of Homeland Security,
including the Secretary of Homeland Security, the Secretary's
counselors, the Assistant Secretary for the Private Sector, the
Director of U.S. Citizenship and Immigration Services, counselors to
such Director, and the Chief of Immigrant Investor Programs at U.S.
Citizenship and Immigration Services, shall act impartially and may not
give preferential treatment to any entity, organization, or individual
in connection with any aspect of the immigrant visa program described
in section 203(b)(5) of the Immigration and Nationality Act, as amended
by section 2.
(b) Improper Activities.--Activities that constitute preferential
treatment under subsection (a) shall include--
(1) working on, or in any way attempting to influence, in a
manner not available to or accorded to all other petitioners,
applicants, and seekers of benefits under the immigrant visa
program described in section 203(b)(5) of the Immigration and
Nationality Act, as amended by section 2, the standard
processing of an application, petition, or benefit for--
(A) a regional center;
(B) a new commercial enterprise;
(C) an affiliated job-creating entity; or
(D) any person or entity associated with such
regional center, new commercial enterprise, or
affiliated job-creating entity; and
(2) meeting or communicating with persons associated with
the entities described in paragraph (1), at the request of such
persons, in a manner not available to or accorded to all other
petitioners, applicants, and seekers of benefits under such
immigrant visa program.
(c) Reporting of Communications.--
(1) Written communication.--Employees of the Department of
Homeland Security, including the officials listed in subsection
(a), shall include, in the record of proceeding for a case
under section 203(b)(5) of the Immigration and Nationality Act,
as amended by section 2, actual or electronic copies of all
case-specific written communication, including emails from
government and private accounts, with non-Department persons or
entities advocating for regional center applications or
individual petitions under such section that are pending on or
after the date of the enactment of this Act (other than routine
communications with other agencies of the Federal Government
regarding the case, including communications involving
background checks and litigation defense).
(2) Oral communication.--If substantive oral communication,
including telephonic communication, virtual communication, and
in-person meetings, takes place between officials of the
Department of Homeland Security and non-Department persons or
entities advocating for regional center applications or
individual petitions under section 203(b)(5) of the Immigration
and Nationality Act, as amended by section 2, that are pending
on or after the date of the enactment of this Act (other than
routine communications with other agencies of the Federal
Government regarding the case, including communications
involving background checks and litigation defense)--
(A) the conversation shall be recorded; or
(B) detailed minutes of the session shall be taken
and included in the record of proceeding.
(3) Notification.--
(A) In general.--If the Secretary of Homeland
Security, in the course of written or oral
communication described in this subsection, receives
evidence about a specific case from anyone other than
an affected party or his or her representative
(excluding Federal Government or law enforcement
sources), such information may not be made part of the
record of proceeding and may not be considered in
adjudicative proceedings unless--
(i) the affected party has been given
notice of such evidence; and
(ii) if such evidence is derogatory, the
affected party has been given an opportunity to
respond to the evidence.
(B) Information from law enforcement, intelligence
agencies, or confidential sources.--
(i) Law enforcement or intelligence
agencies.--Evidence received from law
enforcement or intelligence agencies may not be
made part of the record of proceeding without
the consent of the relevant agency or law
enforcement entity.
(ii) Whistleblowers, confidential sources,
or intelligence agencies.--Evidence received
from whistleblowers, other confidential
sources, or the intelligence community that is
included in the record of proceeding and
considered in adjudicative proceedings shall be
handled in a manner that does not reveal the
identity of the whistleblower or confidential
source, or reveal classified information.
(d) Consideration of Evidence.--
(1) In general.--Case-specific communication with persons
or entities that are not part of the Department of Homeland
Security may not be considered in the adjudication of an
application or petition under section 203(b)(5) of the
Immigration and Nationality Act, as amended by section 2,
unless the communication is included in the record of
proceeding of the case.
(2) Waiver.--The Secretary of Homeland Security may waive
the application of paragraph (1) only in the interests of
national security or for investigative or law enforcement
purposes.
(e) Channels of Communication.--
(1) Email address or equivalent.--The Director of U.S.
Citizenship and Immigration Services shall maintain an email
account (or equivalent means of communication) for persons or
entities--
(A) with inquiries regarding specific petitions or
applications under the immigrant visa program described
in section 203(b)(5) of the Immigration and Nationality
Act, as amended by section 2; or
(B) seeking non-case-specific information about the
immigrant visa program described in such section
203(b)(5).
(2) Communication only through appropriate channels or
offices.--
(A) Announcement of appropriate channels of
communication.--Not later than 40 days after the date
of the enactment of this Act, the Director of U.S.
Citizenship and Immigration Services shall announce
that the only channels or offices by which industry
stakeholders, petitioners, applicants, and seekers of
benefits under the immigrant visa program described in
section 203(b)(5) of the Immigration and Nationality
Act, as amended by section 2, may communicate with the
Department of Homeland Security regarding specific
cases under such section (except for communication made
by applicants and petitioners pursuant to regular
adjudicatory procedures), or non-case-specific
information about the visa program applicable to
certain cases under such section, are through--
(i) the email address or equivalent channel
described in paragraph (1);
(ii) the National Customer Service Center
of U.S. Citizenship and Immigration Services,
or any successor to that Center; or
(iii) the Customer Service and Public
Engagement Directorate, the Immigrant Investor
Program Office, or any successor agencies.
(B) Direction of incoming communications.--
(i) In general.--Employees of the
Department of Homeland Security shall direct
communications described in subparagraph (A) to
the channels of communication or offices listed
in subparagraph (A).
(ii) Rule of construction.--Nothing in this
subparagraph may be construed to prevent--
(I) any person from communicating
with the Ombudsman of U.S. Citizenship
and Immigration Services regarding the
immigrant investor program under
section 203(b)(5) of the Immigration
and Nationality Act, as amended by
section 2; or
(II) the Ombudsman from resolving
problems regarding such immigrant
investor program under section 452 of
the Homeland Security Act of 2002 (6
U.S.C. 272).
(C) Log.--
(i) In general.--The Director of U.S.
Citizenship and Immigration Services shall
maintain a written or electronic log of--
(I) all communications described in
subparagraph (A) and communications
from Members of Congress, which shall
reference--
(aa) the date, time, and
subject of the communication;
and
(bb) the identity of the
Department of Homeland Security
official, if any, to whom the
inquiry was forwarded;
(II) with respect to written
communications described in subsection
(c)(1)--
(aa) the date on which such
communication was received;
(bb) the identities of the
sender and addressee; and
(cc) the subject of such
communication; and
(III) with respect to oral
communications described in subsection
(c)(2)--
(aa) the date on which such
communication occurred;
(bb) the participants in
the conversation or meeting;
and
(cc) the subject of such
communication.
(ii) Transparency.--The log of
communications described in clause (i) shall be
made publicly available in accordance with
section 552 of title 5, United States Code
(commonly known as the ``Freedom of Information
Act'').
(3) Publication of information.--If, as a result of a
communication with an official of the Department of Homeland
Security, a person or entity inquiring about a specific case or
about the immigrant visa program described in section 203(b)(5)
of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5))
received generally applicable and non-case-specific information
about program requirements or administration that has not been
made publicly available by the Department, the Director of U.S.
Citizenship and Immigration Services shall publish such
information on the U.S. Citizenship and Immigration Services
website, not later than 30 days after the communication of such
information to such person or entity, as an update to the
relevant Frequently Asked Questions page or by some other
comparable mechanism.
(f) Penalty.--
(1) In general.--Any person who intentionally violates the
prohibition on preferential treatment under this section or
intentionally violates the reporting requirements under
subsection (c) shall be disciplined in accordance with
paragraph (2).
(2) Sanctions.--Not later than 90 days after the date of
the enactment of this Act, the Secretary of Homeland Security
shall establish, in addition to any criminal or civil penalties
that may be imposed, a graduated set of sanctions based on the
severity of the violation referred to in paragraph (1), which
may include written reprimand, suspension, demotion, or
removal.
(g) Rule of Construction.--Nothing in this section may be construed
to modify any law, regulation, or policy regarding the handling or
disclosure of classified information.
(h) No Creation of Private Right of Action.--Nothing in this
section may be construed to create or authorize a private right of
action to challenge a decision of an employee of the Department of
Homeland Security.
(i) Effective Date.--This section, and the amendments made by this
section, shall take effect on the date of the enactment of this Act.
SEC. 4. TREATMENT OF PERIOD FOR PURPOSES OF NATURALIZATION.
Section 216A(e) of the Immigration and Nationality Act (8 U.S.C.
1186b(e)) is amended to read as follows:
``(e) Treatment of Period for Purposes of Naturalization.--For
purposes of title III, an alien who is in the United States as a lawful
permanent resident on a conditional basis under this section, upon
favorable determination and removal of the conditional basis of the
alien's lawful permanent resident status under subsection (c)(3)(B),
shall be considered to have been admitted as an alien lawfully admitted
to the United States for permanent residence.''.
SEC. 5. 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--
(1) in subsection (k)--
(A) in the matter preceding paragraph (1), by
striking ``or (3)'' and inserting ``(3), or (5)''; and
(B) in paragraph (1), by adding ``and'' at the end;
and
(2) by adding at the end the following:
``(n) If the approval of a petition for classification under
section 203(b)(5) 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.''.
SEC. 6. PAROLE STATUS FOR PETITIONERS AND DEPENDENTS AWAITING
AVAILABILITY OF AN IMMIGRANT VISA.
(a) Authorization.--Section 212(d)(5) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)(5)) is amended--
(1) in subparagraph (A), by striking ``The Attorney General
may, except as provided in subparagraph (B) or in section
214(f), in his discretion parole into the United States
temporarily under such conditions as he may prescribe only on a
case-by-case basis'' and inserting ``Except as provided in
subparagraph (C) and section 214(f), the Secretary of Homeland
Security may temporarily parole into the United States, under
such conditions as the Secretary may prescribe, on a case-by-
case basis,'';
(2) by redesignating subparagraph (B) as subparagraph (C);
and
(3) by inserting after subparagraph (A) the following:
``(B) The Secretary of Homeland Security, in the Secretary's
discretion, may temporarily parole into the United States, under such
conditions as the Secretary may prescribe, any alien who is the
beneficiary of a petition for immigrant status under section 203(b)(5)
(including the spouse or child of such principal alien, if eligible to
receive a visa under section 203(d)) if--
``(i) such petition has been pending for at least 3 years;
or
``(ii)(I) such petition has been approved;
``(II) 3 years or more have elapsed since the petition was
filed; and
``(III) an immigrant visa is not immediately available to
the alien because the total number of visas issued under
section 203(b)(5) has reached the maximum number of visas that
may be made available to immigrants of the State or area under
section 203(b).''.
(b) Employment Authorization for Alien Investors.--
(1) In general.--The Secretary of Homeland Security may--
(A) authorize any alien described in section
212(d)(5)(B) of the Immigration and Nationality Act, as
added by subsection (a), to engage in employment in the
United States; and
(B) provide the alien referred to in subparagraph
(A) with appropriate endorsement of the authorization
under such subparagraph.
(2) Fees.--
(A) In general.--The Secretary may assess a fee for
providing an employment authorization endorsement under
paragraph (1) in an amount equal to not more than the
average cost incurred by the Secretary in adjudicating
applications for such endorsement. The Secretary may
provide for the payment of such fees by installments.
(B) Savings provision.--Nothing in this paragraph
may be construed--
(i) to require the Secretary to charge fees
for adjudication services provided to alien
investors; or
(ii) to limit the authority of the
Secretary to set adjudication and
naturalization fees.
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