Immigrant Investor Program Reform Act

II 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 fol- lowing 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Immigrant Investor Program Reform Act’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 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. VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 2778 IS Sec. 6. Parole status for petitioners and dependents awaiting availability of an immigrant visa. SEC. 2. INVEST IN AMERICAN JOB CREATION. 1 (a) IN GENERAL.—Section 203(b)(5) of the Immi- 2 gration and Nationality Act (8 U.S.C. 1153(b)(5)) is 3 amended to read as follows: 4 ‘‘(5) EMPLOYMENT CREATION.— 5 ‘‘(A) IN GENERAL.—Visas shall be made 6 available, in a number not to exceed 7.1 percent 7 of such worldwide level, to qualified immigrants 8 seeking to enter the United States for the pur- 9 pose of investing in a new commercial enter- 10 prise, directly or in a new commercial enterprise 11 associated with a regional center under sub- 12 paragraph (B)— 13 ‘‘(i) in which such alien has invested 14 or, is actively in the process of investing, 15 capital in an amount not less than the 16 amount specified in subparagraph (D); and 17 ‘‘(ii) that will benefit the United 18 States economy and create full-time em- 19 ployment for not fewer than 10 United 20 States citizens or aliens lawfully admitted 21 for permanent residence or other immi- 22 grants lawfully authorized to be employed 23 in the United States (other than the immi- 24 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 2778 IS grant and the immigrant’s spouse, sons, or 1 daughters). 2 ‘‘(B) REGIONAL CENTER PROGRAM.—Visas 3 made available under subparagraph (A) shall be 4 made available through September 30, 2025, to 5 qualified immigrants pooling their investments 6 with 1 or more additional qualified immigrants 7 in a new commercial enterprise associated with 8 a regional center in the United States that has 9 been designated by the Secretary of Homeland 10 Security on the basis of a proposal for the pro- 11 motion of economic growth, including prospec- 12 tive job creation and increased domestic capital 13 investment. 14 ‘‘(C) RESERVATION FOR TARGETED EM- 15 PLOYMENT AREAS.— 16 ‘‘(i) IN GENERAL.—Of the number of 17 visas allocated under subparagraph (A), 30 18 percent shall be reserved in each fiscal 19 year before fiscal year 2026 for qualified 20 immigrants who invest in a new commer- 21 cial enterprise in a targeted employment 22 area, of which 50 percent shall be reserved 23 for rural areas. 24 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 2778 IS ‘‘(ii) UNUSED VISAS.—At the end of 1 each fiscal year, any unused visa numbers 2 that were reserved under this subpara- 3 graph shall be made generally available in 4 the next fiscal year to immigrants who 5 have filed applications for classification as 6 an immigrant investor under subparagraph 7 (A). 8 ‘‘(D) AMOUNT OF CAPITAL REQUIRED.— 9 ‘‘(i) IN GENERAL.—Except as other- 10 wise provided in this subparagraph, the 11 amount of capital required under subpara- 12 graph (A) shall be $1,100,000. 13 ‘‘(ii) MINIMUM INVESTMENT FOR TAR- 14 GETED EMPLOYMENT AREAS.—Subject to 15 clause (iii), the amount of capital required 16 under subparagraph (A) in the case of a 17 targeted employment area shall be 18 $1,000,000. 19 ‘‘(iii) PROGRAM IMPROVEMENT FEE.— 20 Each immigrant investor shall pay, to the 21 Treasury of the United States, a program 22 improvement fee of $50,000 in conjunction 23 with each I–526 petition submitted under 24 this paragraph after the date of the enact- 25 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 2778 IS ment of the Immigrant Investor Program 1 Reform Act. 2 ‘‘(iv) ADJUSTMENT OF REQUIRED 3 CAPITAL.— 4 ‘‘(I) AUTOMATIC ADJUSTMENT.— 5 Beginning on October 1, 2022 and 6 every 3 years thereafter, the quali- 7 fying investment amounts under 8 clauses (i) and (ii) shall be automati- 9 cally adjusted based on the cumulative 10 annual percentage change in the 11 unadjusted All Items Consumer Price 12 Index for All Urban Consumers (CPI– 13 U) for the U.S. City Average reported 14 by the Bureau of Labor Statistics 15 compared to such amounts in Sep- 16 tember 2019. The qualifying invest- 17 ment amount will be rounded down to 18 the nearest $100,000. 19 ‘‘(II) NOTICE OF ADJUST- 20 MENT.— 21 ‘‘(aa) IN GENERAL.—Imme- 22 diately after each adjustment 23 under subclause (I), the Sec- 24 retary of Homeland Security 25 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 2778 IS shall publish a technical amend- 1 ment in the Federal Register 2 that includes the amounts set 3 forth in clauses (i) and (ii), as 4 adjusted by subclause (I). 5 ‘‘(bb) APPLICABILITY.—Any 6 petition for classification of an 7 alien as an immigrant investor 8 under this paragraph that is filed 9 on or after October 1 in the year 10 an automatic adjustment to the 11 minimum qualifying investment 12 amount occurs under subclause 13 (I) shall be subject to such ad- 14 justed amount. 15 ‘‘(E) REGIONAL CENTER PROGRAM.— 16 ‘‘(i) PROCESSING.— 17 ‘‘(I) IN GENERAL.—In processing 18 petitions under section 204(a)(1)(H) 19 for classification under this para- 20 graph, the Secretary of Homeland Se- 21 curity— 22 ‘‘(aa) may process petitions 23 in a manner and order estab- 24 lished by the Secretary; and 25 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 2778 IS ‘‘(bb) shall deem such peti- 1 tions to include records pre- 2 viously filed with the Secretary 3 under subparagraph (F) if the 4 alien petitioner certifies that such 5 records are incorporated by ref- 6 erence into the alien’s petition. 7 ‘‘(II) PRIORITY.—In processing 8 applications for designation as a re- 9 gional center, amendments, specific 10 investment offerings, and annual cer- 11 tifications submitted under this para- 12 graph, the Secretary may give pri- 13 ority, upon the payment of a $50,000 14 premium processing fee, to such appli- 15 cations and certifications, notwith- 16 standing other pending applications or 17 petitions filed under other employ- 18 ment-based visa categories. 19 ‘‘(III) PREMIUM PROCESSING OF 20 EB–5 REGIONAL CENTER APPLICA- 21 TIONS.— 22 ‘‘(aa) IN GENERAL.—An en- 23 tity seeking designation as an 24 EB–5 regional center or an 25 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 2778 IS amendment of a previously ap- 1 proved regional center may, upon 2 the payment of a $50,000 pre- 3 mium processing fee, request 4 that the Secretary process the 5 application within 120 days. 6 ‘‘(bb) RESPONSE TO PRE- 7 MIUM PROCESSING REQUEST.—If 8 the Secretary cannot render a 9 final decision on the application 10 or petition for which premium 11 processing was requested, as evi- 12 denced by an approval notice or 13 denial notice, the Secretary shall 14 refund the premium processing 15 fee. 16 ‘‘(IV) EXPEDITED PROCESSING 17 OF TARGETED EMPLOYMENT AREA 18 PETITIONS.—A petition relating to a 19 project in a targeted employment 20 area, including individual investor pe- 21 titions, will be subject to expedited re- 22 view without payment of an additional 23 premium processing fee. 24 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 2778 IS ‘‘(ii) ESTABLISHMENT OF REGIONAL 1 CENTERS.—A regional center shall operate 2 within a defined, contiguous, and limited 3 geographic area, which shall be described 4 in the proposal and be consistent with the 5 purpose of concentrating pooled investment 6 within such area. The proposal to establish 7 a regional center shall— 8 ‘‘(I) demonstrate that the pooled 9 investment will have a significant eco- 10 nomic impact on such geographic 11 area; 12 ‘‘(II) include reasonable pre- 13 dictions, supported by economically 14 and statistically valid forecasting 15 tools, concerning— 16 ‘‘(aa) the amount of invest- 17 ment that will be pooled; 18 ‘‘(bb) the types of commer- 19 cial enterprises that will receive 20 such investments; 21 ‘‘(cc) the details of the jobs 22 that will be created directly or in- 23 directly as a result of such in- 24 vestments; and 25 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 2778 IS ‘‘(dd) other positive eco- 1 nomic effects such investments 2 will have; and 3 ‘‘(III) include a description of the 4 policies and procedures that are rea- 5 sonably designed to ensure program 6 compliance; and 7 ‘‘(IV) include a description of the 8 policies and procedures in place that 9 are reasonably designed to monitor 10 new commercial enterprises, third- 11 party promoters (including migration 12 agents), and any affiliated job-cre- 13 ating entity to ensure compliance 14 with— 15 ‘‘(aa) all applicable laws, 16 regulations, and executive orders 17 of the United States, including 18 immigration laws, criminal laws, 19 and securities laws; and 20 ‘‘(bb) all securities laws of 21 each State in which securities of- 22 ferings will be conducted, invest- 23 ment advice will be rendered, or 24 the offerors or offerees reside. 25 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 2778 IS ‘‘(iii) JOB CREATION.— 1 ‘‘(I) IN GENERAL.—In deter- 2 mining compliance with subparagraph 3 (A)(ii), the Secretary of Homeland Se- 4 curity shall permit aliens seeking ad- 5 mission based on an investment in a 6 new commercial enterprise associated 7 with a regional center under this sub- 8 paragraph to rely on economically and 9 statistically valid methodologies for 10 determining the number of jobs cre- 11 ated by the program, including— 12 ‘‘(aa) jobs estimated to have 13 been created directly, which may 14 be verified using such methodolo- 15 gies, provided that the Secretary 16 may request additional evidence 17 to verify that the directly created 18 jobs satisfy the requirements 19 under subparagraph (A)(ii); and 20 ‘‘(bb) consistent with this 21 subparagraph, jobs estimated to 22 have been created indirectly 23 through revenues generated from 24 increased exports, improved re- 25 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 2778 IS gional productivity, job creation, 1 and increased domestic capital 2 investment resulting from the 3 program. 4 ‘‘(iv) AMENDMENTS.—The Secretary 5 of Homeland Security shall— 6 ‘‘(I) require regional centers to 7 provide 120 days advance notice to 8 the Secretary of significant proposed 9 changes to their organizational struc- 10 ture, ownership, or administration, in- 11 cluding the sale of such centers or 12 other arrangements in which individ- 13 uals not previously subject to the re- 14 quirements under subparagraph (H) 15 become involved with the regional cen- 16 ter, before any such proposed changes 17 may take effect unless exigent cir- 18 cumstances are present in which case 19 the regional center shall provide no- 20 tice to the Secretary not later than 5 21 business days after such change; and 22 ‘‘(II) notwithstanding the pend- 23 ency of a determination described in 24 subclause (II), adjudicate business 25 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 2778 IS plans under subparagraph (F) and pe- 1 titions under section 204(a)(1)(H). 2 ‘‘(v) SANCTIONS.— 3 ‘‘(I) VIOLATIONS.—The Sec- 4 retary shall sanction a regional center, 5 in accordance with subclause (II), if— 6 ‘‘(aa) the regional center 7 fails to submit an annual state- 8 ment, attestation, certification, or 9 other information required under 10 this paragraph; 11 ‘‘(bb) the regional center 12 fails to pay the fee required 13 under subparagraph (J)(ii) with- 14 in 30 days after the date on 15 which such fee is due or, after 16 being fined, fails to pay the fine 17 within 90 days after the date on 18 which such fine is due; 19 ‘‘(cc) the Secretary deter- 20 mines that the regional center 21 knowingly submitted, or caused 22 to be submitted, a statement, at- 23 testation, certification, or any 24 other information under this 25 VerDate Sep 11 2014 00:13 Nov 07, 2019 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S2778.IS S2778 pamtmann on DSKBC07HB2PROD with BILLS 14 •S 2778 IS paragraph that contained an un- 1 true statement of material fact or 2 omitted to state a material fact 3 necessary in order to make the 4 statement, attestation, certifi- 5 cation or provision of informa- 6 tion, in light of the circumstances 7 under which they were made, not 8 misleading; 9 ‘‘(dd) the Secretary deter- 10 mines a person involved with the 11 regional center, an associated 12 new commercial enterprise, or 13 any affiliated job-creating entity 14 was knowingly involved by the re- 15 gional center in violation of sub- 16 paragraph (H); or 17 ‘‘(ee) the Secretary deter- 18 mines that the regional center is 19 otherwise conducting itself in a 20 manner inconsistent with its des- 21 ignation, including— 22 ‘‘(AA) conduct that 23 fails to demonstrate that the 24 VerDate Sep 11 [Text truncated for display. 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