Section 1 Short title
This Act may be cited as the “American Entrepreneurship and Investment Act of 2014”.
American Entrepreneurship and Investment Act of 2014
A BILL
To amend the Immigration and Nationality Act to provide for reforms to the EB–5 immigrant investor program, and for other purposes.
Sec. 2 The EB–5 employment-creation immigrant investor program
Reforming the EB–5 immigrant investor program— Section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)) is amended as follows:
Type of investment— In subparagraph (A), by inserting “or similar entity” after “including a limited partnership”.
Targeted employment area— In subparagraph (B)—
by amending clause (i) to read as follows:
“(i) In general—Not fewer than 5,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who invest in a new commercial enterprise described in subparagraph (A), which—
“(I) is investing such capital in a targeted employment area; and
“(II) will create employment in such targeted employment area.”
by amending clause (ii) to read as follows:
“(ii) Targeted employment area defined—In this paragraph, the term “targeted employment area” means, at the time of investment—
“(I) a rural area;
“(II) an area that has experienced high unemployment (of at least 150 percent of the national average rate) within the preceding 12 months;
“(III) a county that has had a decline in population of 20 percent or more since 1970;
“(IV) a military installation closed pursuant to a base closure law (as defined in section 101(a)(17) of title 10, United States Code); or
“(V) an area that is within the boundaries established for purposes of a Federal, State, County, or City economic development incentive program, including areas defined as Enterprise Zones, Renewal Communities and Empowerment Zones.”
in clause (iii), by striking “within a metropolitan statistical area or”; and
by inserting after clause (iii) the following:
“(iv) State determinations—In a case in which a geographic area is determined under clause (ii) to be a targeted employment area by a delegated State agency, and such a determination has been made using acceptable data sources to include U.S. Census Bureau data (including data from the American Community Survey) and data from the Bureau of Labor Statistics (including data from the Local Area Unemployment Statistics), The Secretary of Homeland Security or her designee shall defer to a State’s designation as conclusive.
“(v) Effect of prior determination—In a case in which an area is determined under clause (ii) to be a targeted employment area, such determination shall remain in effect during the 2-year period beginning on the date of the determination for purposes of an alien seeking a visa reserved under this subparagraph.”
Capital— In subparagraph (C)—
in clause (i)—
by striking “The Attorney General, in consultation with the Secretary of Labor and the Secretary of State” and inserting “The Secretary of Commerce, in consultation with the Secretary of Homeland Security and Secretary of Labor”; and
by adding at the end the following: “Unless adjusted by the Secretary of Commerce, the amount specified in this clause shall automatically adjust, on January 1, 2016, by the percentage change in the Consumer Price Index for all urban consumers published by the Department of Labor during fiscal year 2015, and on every fifth subsequent January 1 by the cumulative percentage change in the Consumer Price Index during the previous 5 fiscal years, for any petition filed to classify an alien under this paragraph on or after the date of each automatic adjustment.”;
in clause (ii), by striking “Attorney General” and inserting “Secretary of Homeland Security”;
in clause (iii)(II), by striking “Attorney General” and inserting “Secretary of Homeland Security”; and
by adding after clause (iii) the following:
“(iv) Capital defined—For purposes of this paragraph, the term “capital” does not include any assets acquired, directly or indirectly, by unlawful means”
Calculating job creation— By amending subparagraph (D) to read as follows:
“(D) Full-time employment—Job creation under this paragraph may consist of employment measured in full-time equivalents, such as intermittent or seasonal employment opportunities and construction jobs. A full-time employment position is not a requirement for indirect job creation. In this paragraph, the term “full-time employment” means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position. Such employment may be satisfied on a full-time equivalent basis by calculating the number of full-time employees that could have been employed if the reported number of hours worked by part-time employees had been worked by full-time employees. Full-time equivalent employment shall be calculated by dividing the part-time hours paid by the standard number of hours for full-time employees.”
Permanent authorization of regional center program— By adding after subparagraph (D) the following:
“(E) Employment creation regional centers
“(i) In general—Visas under this paragraph shall be made available to qualified immigrants who participate in a program involving a regional center in the United States, which has been designated by the Secretary of Homeland Security, in consultation with the Secretary of Commerce, on the basis of a general proposal, for the promotion of economic growth, including increased exports, improved regional productivity, job creation, and increased domestic capital investment. A regional center shall have jurisdiction over a specific geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center under this subparagraph may be based on general predictions, contained in the proposal, concerning—
“(I) the kinds of new commercial enterprises that will receive capital from aliens;
“(II) the jobs that will be created directly or indirectly as a result of such investments; and
“(III) other positive economic effects such investments will have.
“(ii) Methodologies—In determining compliance with this subparagraph, and notwithstanding requirements applicable to investors not involving regional centers, the Secretary of Homeland Security, in consultation with the Secretary of Commerce, shall recognize reasonable methodologies for determining the number of jobs created by a designated regional center, including such jobs that are estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, or increased domestic capital investment resulting from the regional center.
“(iii) Special procedures
“(I) Preapproval of new commercial enterprises—The Secretary of Homeland Security shall establish a preapproval procedure for commercial enterprises that—
“(aa) allows a regional center or potential regional center to apply to the Secretary for preapproval of a new commercial enterprise before any alien files a petition for classification under this paragraph by reason of investment in the new commercial enterprise;
“(bb) in considering an application under subclause (I)—
“(AA) allows the applicant to address and cure any deficiencies identified by the Secretary in the application prior to final determination on the application; and
“(BB) requires that the Secretary make final decisions on all issues under this paragraph other than those issues unique to each individual investor in the new commercial enterprise; and
“(cc) requires that the Secretary eliminate the need for the repeated submission of documentation that is common to multiple petitions for classification under this paragraph through a regional center.
“(II) Deference to prior rulings—Except in the case of material change, fraud, or legal deficiency, the Secretary of Homeland Security shall give deference to, and not revisit, favorable determinations made pertaining to a commercial enterprise during the adjudication of—
“(aa) petitions filed by immigrants investing in the commercial enterprise under this subparagraph; or
“(bb) petitions filed by such immigrants under section 216A for removal of conditional basis.
“(iv) Processing times—The Secretary of Homeland Security shall make determinations on a proposal under clause (i) or an application under clause (iii) not later than 180 days after the date on which the proposal or application is filed. In the event that additional information or documentation is requested by the Secretary, the Secretary shall adjudicate the proposal or application not later than 30 days after the receipt of such information or documentation. The filing party shall be notified in writing within 30 days of the date of filing if the filing does not meet the standards for approval. If the filing does not meet such standards, the notice shall include the reasons therefore and the Secretary shall provide an opportunity for the prompt resubmission of a modified filing.”
Preventing fraud in the regional center program— In subparagraph (E) (as added by paragraph (5)), by inserting after clause (iii) the following:
“(v) Bona fides of regional center principals—No person may serve as an owner, director or officer of a regional center, or hold other positions of substantive authority for the operations, management or promotion of a regional center, if the Secretary of Homeland Security determines based on substantial evidence that the person—
“(I) has been found liable within the previous 5 years for any criminal or civil violation of any law relating to fraud or deceit;
“(II) has been found liable at any time for any such criminal or civil violation if such violation involved—
“(aa) a criminal conviction with a term of imprisonment of at least 1 year; or
“(bb) any law or agency regulation in connection with the purchase or sale of a security; or
“(III) is engaged in, has ever been engaged in, or seeks to engage in any—
“(aa) terrorist activity (as defined in clauses (iii) and (iv) of section 212(a)(3)(B));
“(bb) activity relating to espionage or sabotage;
“(cc) illicit trafficking in any controlled substance;
“(dd) activity related to money laundering (as described in section 1956 or 1957 of title 18, United States Code);
“(ee) violation of any statute, regulation or Executive order regarding foreign financial transactions or foreign asset control; or
“(ff) human trafficking or any other human rights offense.
“(vi) Fee for regional center designation—In addition to any other fees authorized by law, the Secretary of Homeland Security shall impose—
“(I) a fee to apply for designation as a regional center under this subparagraph; and
“(II) a fee for preapproval of a new commercial enterprise as provided under clause (iii)(I).”
EB–5 petitions— By adding after subparagraph (E) (as amended by paragraph (6)) the following:
“(F) EB–5 petitions
“(i) Processing times—The Secretary of Homeland Security shall adjudicate a petition filed pursuant to this paragraph not later than 180 days after the date on which the petition is filed. In the event that additional information or documentation is requested by the Secretary, the Secretary shall adjudicate the petition not later than 30 days after the receipt of such information or documentation. The filing party shall be notified in writing within 30 days of the date of filing if the filing does not meet the standards for approval. If the filing does not meet such standards, the notice shall include the reasons therefore and the Secretary shall provide an opportunity for the prompt resubmission of a modified filing.
“(ii) Communications with eb–5 petitioners—The Secretary of Homeland Security shall establish a means by which a petitioner for status under this paragraph, a petitioner under section 216A for removal of conditional basis, who is the recipient of a request for additional information or documentation, a regional center, or a project developer may, prior to the deadline to respond to that request, communicate directly with U.S. Citizenship and Immigration Services to address concerns underlying the request.
“(iii) Fraud—The Secretary of Homeland Security, in consultation with the Commissioner of the Securities and Exchange Commission, shall develop a strategy to review securities-related materials included in any immigration petition under this paragraph, or a petition under section 216A for removal of conditional basis, when there is evidence of fraud.”
Conforming amendment— Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is repealed.
Sec. 3 Conditional permanent resident status for immigrant investors and entrepreneurs
Procedure for granting immigrant status— Section 204(a)(1)(H) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) is amended by striking “Attorney General” and inserting “Secretary of Homeland Security”.
Conditional permanent resident status— Section 216A of the Immigration and Nationality Act (8 U.S.C. 1186b) is amended—
by striking “Attorney General” and “Attorney General’s” each place such terms appear, except for the reference to the Attorney General in section 216A(d)(2)(C), and inserting “Secretary of Homeland Security” and “Secretary of Homeland Security’s”, respectively;
by striking “the Service” each place such term appears and inserting “U.S. Citizenship and Immigration Services”;
in subsection (b)(1)—
in subparagraph (A), by striking “investment” and inserting “investment or engagement”; and
by amending subparagraph (B) to read as follows:
“(B)
“(i) the requisite investment or engagement was not made or was not sustained throughout the period of the alien’s residence in the United States; or
“(ii) the alien was otherwise not conforming to the requirements of section 203(b)(5), as applicable;”
in subsection (c)(3)(A), by striking “the” before “such filing”;
in subsection (d)—
in paragraph (1)—
in the matter preceding subparagraph (A), by striking “the alien”; and
by amending subparagraph (A) to read as follows:
“(A) the requisite investment or engagement was made and was sustained throughout the period of the alien’s residence in the United States; and”
in paragraph (2)(A), by adding at the end the following: “A date specified by the applicant (but not later than the fourth anniversary) shall be substituted for the second anniversary in applying the preceding sentence if the applicant demonstrates that the applicant has attempted to follow the applicant’s business model in good faith, provides an explanation for the delay in filing the petition that is based on circumstances outside of the applicant’s control, and demonstrates that such circumstances will be able to be resolved within the specified period.”;
by redesignating subsection (f) as subsection (i);
by adding after subsection (e) the following:
“(f) Age determination for children of alien entrepreneurs—An immigrant admitted under section 203(d) as a lawful permanent resident on a conditional basis as the child of an alien entrepreneur, whose lawful permanent resident status on a conditional basis is terminated under this section, shall continue to be considered a child of the alien entrepreneur for the purpose of a subsequent immigrant petition by the alien entrepreneur under paragraph (b)(5) if the immigrant remains unmarried and the subsequent petition by the alien entrepreneur is filed within 1 year after the termination of lawful permanent resident status on a conditional basis. No alien shall be considered a child under this paragraph with respect to more than 1 petition filed after the alien’s 21st birthday.
“(g) Consolidated petition—If an alien entrepreneur submits a petition under this section, the alien spouse and alien child shall be deemed to have timely submitted such petitions as well.
“(h) Processing time—The Secretary of Homeland Security shall adjudicate a petition filed pursuant to this paragraph not later than 180 days after the date on which the petition is filed. In the event that additional information or documentation is requested by the Secretary, the Secretary shall adjudicate the petition not later than 30 days after the receipt of such information or documentation. The filing party shall be notified in writing within 30 days of the date of filing if the filing does not meet the standards for approval. If the filing does not meet such standards, the notice shall include the reasons therefore and the Secretary shall provide an opportunity for the prompt resubmission of a modified filing.”
in subsection (h) (as redesignated by paragraph (6)), in paragraph (3), by inserting “or similar entity” before the period.
Concurrent filing; adjustment of status— Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended—
in subsection (k), in the matter preceding paragraph (1), by striking “(1), (2), or (3)” and inserting “(1), (2), (3), or (5)”; and
by adding at the end the following:
“(n) If, at the time a petition is filed under section 204 for classification under section 203(b)(5), approval of the petition would make a visa immediately available to the alien beneficiary, the alien beneficiary’s adjustment application under this section shall be considered to be properly filed whether the application is submitted concurrently with, or subsequent to, the visa petition.”
Premium processing— Section 286(u) of the Immigration and Nationality Act (8 U.S.C. 1356(u)) is amended by adding at the end the following: “In the case of a petition filed under section 204(a)(1)(H) for classification under section 203(b)(5), if the petitioner desires a guarantee of a decision on the petition in 60 days or less, the premium processing fee under this subsection shall be set at $5,000”.
Sec. 4 National interest waivers for entrepreneurs with a proven record of job creation
Aliens who are members of the professions holding advanced degrees— Section 203(b)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(1)(B)) is amended—
by striking “(B)(i) Subject to clause (ii)” and inserting the following:
“(B) National interest waivers
“(i) In general—Subject to clauses (ii) and (iii)”
in clause (ii)—
by striking “(ii)(I) The Attorney General” and inserting the following:
“(ii) Physicians working in shortage areas or veteran facilities
“(I) In general—The Secretary of Homeland Security”
in subclause (II), by striking “(II) No permanent resident visa” and inserting “(II) Prohibition.—No permanent resident visa”;
in subclause (III), by striking “(III) Nothing in this subparagraph” and inserting the following: “(III) Statutory construction.—Nothing in this subparagraph”; and
in subclause (IV), by striking “(IV) The requirements of” and inserting the following: “(IV) Effective date.—The requirements of”; and
by inserting after clause (ii) the following:
“(iii) Entrepreneurs and job creators—The Secretary of Homeland Security shall grant a national interest waiver pursuant to clause (i) on behalf of any alien entrepreneur with respect to whom a petition for preference classification has been filed under subparagraph (A) if—
“(I) the alien has engaged in a new commercial enterprise (including a limited partnership or similar entity) in the United States; and
“(II) such enterprise has benefitted the United States economy and satisfied the employment creation requirements described in section 204(m).”
Skilled workers and professionals; other workers— Section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)) is amended by adding at the end the following:
“(6) National interest waiver for entrepreneurs and job creators—The Secretary of Homeland Security shall waive application of paragraphs (2)(C) and (3)(B) on behalf of any alien entrepreneur with respect to whom a petition for preference classification has been filed under subparagraph (A) if—
“(A) the alien has engaged in a new commercial enterprise (including a limited partnership or similar entity) in the United States; and
“(B) such enterprise has benefitted the United States economy and satisfied the employment creation requirements described in section 204(m).”
Requirements—
In general— Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following:
“(m) Entrepreneurs and job creators
“(1) Job creation requirements—For purposes of paragraphs (1)(B)(iii) and (6) of section 203(b), a new commercial enterprise shall be deemed to have benefitted the United States economy and satisfied the employment creation requirements of this subsection if the enterprise—
“(A) has, during the period beginning 4 years prior to the date that a petition for preference classification with respect to the alien has been filed under subparagraph (A), created direct, full-time employment—
“(i) for not less than 5 United States workers; or
“(ii) in the case of an enterprise in a Distressed Area Development Zone, for not less than 3 United States workers; and
“(B) the enterprise has received enough investment or revenue during the period described in subparagraph (A) to support the employment creation requirements described in such subparagraph.
“(2) Definitions—For purposes of this subsection and paragraphs (1)(B)(iii) and (6) of section 203(b):
“(A) 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. Such employment may be satisfied on a full-time equivalent basis by calculating the number of full-time employees that could have been employed if the reported number of hours worked by part-time employees had been worked by full-time employees. Full-time equivalent employment shall be calculated by dividing the part-time hours paid by the standard number of hours for full-time employees.
“(B) Investment or revenue—The term “investment or revenue” does not include any assets acquired, directly or indirectly, by unlawful means. The term “investment” includes assets provided by the alien entrepreneur and may include assets, including venture capital investments, provided pursuant to an investment agreement with investors who are United States citizens or aliens lawfully admitted to the United States for permanent residence.
“(C) United states worker—The term “United States worker” means an employee (other than the immigrant or the immigrant’s spouse, sons, or daughters) who—
“(i) is a citizen or national of the United States; or
“(ii) is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207, is granted asylum under section 208, or is an immigrant otherwise authorized to be employed in the United States.
“(D) Distressed area development zones—The term “Distressed Area Development Zone” means—
“(i) a low-income geographic area, as such term is defined in section 351 of the Small Business Investment Act of 1958 (15 U.S.C. 689); or
“(ii) a city or county in the United States—
“(I) that has experienced high unemployment (of not less than 150 percent of the national average, as determined by the Secretary of Labor) within the preceding 24 months; or
“(II) has had a 20 percent or more decrease in population since 1970.
“(3) Priority date—The priority date for any alien who is adjusting status from any nonimmigrant classification described in section 101(a)(15) and who receives a national interest waiver under paragraph (1)(B)(iii) or (6) of section 203(b) shall be the date of the first petition or application for status under section 101(a)(15) filed with respect to that alien.”
Conforming amendment— Section 204(a)(1)(E) of the Immigration and Nationality Act is amended by inserting “or under paragraph (1), (2) or (3) of section 203(b) if such alien is seeking a national interest waiver under paragraph (1)(B)(iii) or (6) of section 203(b)” after “203(b)(1)(A)”.
Sec. 5 EB–5 visa reforms
Aliens not subject to direct numerical limitation— Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end the following:
“(P) Aliens who are the spouse or a child of an alien admitted as an employment-based immigrant under section 203(b)(5).”
Age determination for children of alien investors— Section 203(h) of the Immigration and Nationality Act (8 U.S.C. 1153(h)) is amended by adding at the end the following:
“(5) Age determination for children of alien investors—An alien admitted under subsection (d) as a lawful permanent resident on a conditional basis as the child of an alien lawfully admitted for permanent residence under subsection (b)(5), whose lawful permanent resident status on a conditional basis is terminated under section 216A, shall continue to be considered a child of the principal alien for the purpose of a subsequent immigrant petition by such alien under subsection (b)(5) if the alien remains unmarried and the subsequent petition is filed by the principal alien not later than 1 year after the termination of conditional lawful permanent resident status. No alien shall be considered a child under this paragraph with respect to more than 1 petition filed after the alien’s 21st birthday.”
Enhanced pay scale for certain federal employees administering the EB–5 program— The Secretary may establish, fix the compensation of, and appoint individuals to, designated critical administrative, technical, and professional positions needed to administer sections 203(b)(5) and 216A of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5) and 1186b).
Delegation of certain EB–5 authority—
In general— The Secretary of Homeland Security may delegate to the Secretary of Commerce authority and responsibility for determinations under sections 203(b)(5) and 216A (with respect to alien entrepreneurs) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5) and 1186a), including determining whether an alien has met employment creation requirements.
Regulations— The Secretary of Homeland Security and the Secretary of Commerce may each adopt such rules and regulations as are necessary to carry out the delegation authorized under paragraph (1), including regulations governing the eligibility criteria for obtaining benefits pursuant to the amendments made by this section.
Use of fees— Adjudication fees described in section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)) shall remain available until expended to reimburse the Secretary of Commerce for the costs of any determinations made by the Secretary of Commerce under paragraph (1).
Concurrent filing of EB–5 petitions and applications for adjustment of status— Section 245 (8 U.S.C. 1255) of the Immigration and Nationality Act is amended—
in subsection (k), in the matter preceding paragraph (1), by striking “or (3)” and inserting “(3), or (5)”; and
by adding at the end the following:
“(n) At the time a petition is filed for classification under section 203(b)(5), if the approval of such petition would make a visa immediately available to the alien beneficiary, the alien beneficiary’s application for adjustment of status under this section shall be considered to be properly filed whether the application is submitted concurrently with, or subsequent to, the visa petition.”
Technical amendment— Section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), as amended by this Act, is further amended by striking “Attorney General” each place it appears and inserting “Secretary of Homeland Security”.
Sec. 6 Numerical Limitations on individual foreign states
Numerical limitation to any single foreign state— Section 202(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1152(a)(2)) is amended—
in the paragraph heading, by striking “and employment-based”;
by striking “(3), (4), and (5),” and inserting “(3) and (4),”;
by striking “subsections (a) and (b) of section 203” and inserting “section 203(a)”;
by striking “7” and inserting “15”; and
by striking “such subsections” and inserting “such section”.
Conforming amendments— Section 202 of the Immigration and Nationality Act (8 U.S.C. 1152) is amended—
in subsection (a)—
in paragraph (3), by striking “both subsections (a) and (b) of section 203” and inserting “section 203(a)”; and
by striking paragraph (5); and
by amending subsection (e) to read as follows:
“(e) Special rules for countries at ceiling—If it is determined that the total number of immigrant visas made available under section 202(a) to natives of any single foreign state or dependent area will exceed the numerical limitation specified in subsection (a)(2) in any fiscal year, in determining the allotment of immigrant visa numbers to natives under section 203(a), visa numbers with respect to natives of that state or area shall be allocated (to the extent practicable and otherwise consistent with this section and section 203) in a manner so that, except as provided in subsection (a)(4), the proportion of the visa numbers made available under each of paragraphs (1) through (4) of section 203(a) is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(a).”
Country-Specific offset— Section 2 of the Chinese Student Protection Act of 1992 (8 U.S.C. 1255 note) is amended—
in subsection (a), by striking “subsection (e))” and inserting “subsection (d))”; and
by striking subsection (d) and redesignating subsection (e) as subsection (d).
Effective date— The amendments made by this section shall take effect 1 year after the date of the enactment of this Act.
Sec. 7 Applicability of Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act (15 U.S.C. 78a et seq.) shall apply to any petition under section 203(b)(5).
Sec. 8 Regulations
Not later than 180 days after the effective date of this subtitle, the Secretary of Homeland Security shall make rules to carry out this Act and the amendments made by this Act.
Sec. 9 Consultation with Secretary of Commerce
The Secretary of Homeland Security may consult with the Secretary of Commerce in carrying out this Act and the amendments made by this Act.
Sec. 10 Effective date
This Act and the amendments made by this Act shall take effect beginning on the date that is 6 months after the date of enactment of this Act.