previous next

§ 4806 : EB–5 VISA REFORMS.


ALIENS NOT SUBJECT TO DIRECT NUMERICAL LIMITATION.—Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended by sections 2103(c)(2), 2212(d)(2), 2307(b), and 2402, is further amended by adding at the end the following:


Aliens who are the spouse or a child of an alien admitted as an employment-based immigrant under section 203(b)(5).


TECHNICAL AMENDMENT.—Section 203(b)(5), as amended by this Act, is further amended by striking Attorney General each place it appears and inserting Secretary of Homeland Security.




IN GENERAL.—Section 203(b)(5)(B) (8 U.S.C. 1153(b)(5)(B)) is amended to read as follows:




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—


is investing such capital in a targeted employment area; and


will create employment in such targeted employment area.


DURATION OF HIGH UNEMPLOYMENT AND POVERTY AREA DESIGNATION.—A designation of a high unemployment or poverty area as a targeted employment area shall be valid for 5 years and may be renewed for additional 5-year periods if the area continues to meet the definition of a high unemployment or poverty area. An investor who has made the required amount of investment in such a targeted employment area during its period of designation shall not be required to increase the amount of investment based upon expiration of the designation.


ADJUSTMENT OF MINIMUM EB–5 INVESTMENT AMOUNT.—Section 203(b)(5)(C)(i) (8 U.S.C. 1153(b)(5)(C)(i)) is amended—


by striking The Attorney General and inserting The Secretary of Commerce;


by striking Secretary of State and inserting Secretary of Homeland Security; 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 (CPI-U) during fiscal year 2015, and on every fifth subsequent January 1 by the cumulative percentage change in the CPI–U 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 GENERAL.—Section 203(b)(5) (8 U.S.C. 1153(b)(5)), as amended by subsections (b) and (c) and section 4804, is further amended—


by striking subparagraph (D) and inserting following:


CALCULATION OF 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.

; and


by adding at the end the following:


DEFINITIONS.—In this paragraph:


The term capital means all real, personal, or mixed assets, whether tangible or intangible, owned or controlled by the investor, or held in trust for the benefit of the investor, to which the investor has unrestricted access, which shall be valued at fair market value in United States dollars, in accordance with Generally Accepted Accounting Principles, at the time it is invested under this paragraph.


The term full-time employment means employment in a position that requires at least 35 hours of service per week, regardless of how many employees fill the position.


The term high unemployment and poverty area means—


an area consisting of a census tract or contiguous census tracts that has an unemployment rate that is at least 150 percent of the national average unemployment rate and includes at least 1 census tract with 20 percent of its residents living below the poverty level as determined by the Bureau of the Census; or


an area that is within the boundaries established for purposes of a Federal or State economic development incentive program, including areas defined as Enterprise Zones, Renewal Communities, Promise Zones, and Empowerment Zones.


The term rural area means—


any area other than an area within a metropolitan statistical area or within the outer boundary of any city or town having a population of 20,000 or more (based on the most recent decennial census of the United States); or


any city or town having a population of fewer than 20,000 (based on the most recent decennial census of the United States) that is located within a State having a population of fewer than 1,500,000 (based on the most recent decennial census of the United States).


The term targeted employment area means a rural area or a high unemployment and poverty area.


EFFECTIVE DATE.—The amendment made by paragraph (1) shall apply to any application for a visa under section 203(b)(5) of the Immigration and Nationality Act that is filed on or after the date that is 1 year after the date of the enactment of this Act.


AGE DETERMINATION FOR CHILDREN OF ALIEN INVESTORS.—Section 203(h) (8 U.S.C. 1153(h)) is amended by adding at the end the following:


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).




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), as amende by section 4237(b), is further amended—


in subsection (k), in the matter preceding paragraph (1), by striking or (3) and inserting (3), (5), or (7); and


by adding at the end the following:


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.