STAFF DRAFT FOR STAFF DISCUSSION PURPOSES ONLY NOT APPROVED BY ANY MEMBER OR FOR INTRODUCTION

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1 To reform the EB- Employment Creation Visa and Regional Center Program in order to promote foreign capital investment and job creation in American communities. 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. This Act may be cited as the EB- Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act of or EB- Reform Act. SEC.. TABLE OF CONTENTS. Table of Contents. The table of contents for this Act is as follows: SEC. 1. SHORT TITLE. SEC.. TABLE OF CONTENTS TITLE I EMPLOYMENT CREATION VISAS AND REGIONAL CENTER PROGRAM SEC. 1. EB- IMMIGRANT VISA NUMERICAL LIMIT AND ALLOCATION. SEC.. EB- IMMIGRANT INVESTORS AND REGIONAL CENTER PROGRAM. SEC.. GUIDELINES FOR JOB CREATION METHODOLOGIES. TITLE II EB- INTEGRITY, FRAUD PREVENTION, AND DETECTION ACCOUNT SEC. 1. EB- FRAUD PREVENTION AND DETECTION FEES AND ACCOUNT. SEC.. ACCOUNTING REPORT. TITLE III PROGRAM INTEGRITY MEASURES AND TRANSPARENCY SEC. 01. PROGRAM INTEGRITY MEASURES. SEC. 0. TRANSPARENCY. TITLE IV REQUIREMENTS FOR REMOVAL OF CONDITIONS ON PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHILDREN SEC. 01. PETITIONS FOR REMOVAL OF CONDITION. SEC. 0. INTEGRITY MEASURES. TITLE V MISCELLANEOUS PROVISIONS SEC. 01. REPEALS. SEC. 0. AGE DETERMINATIONS FOR CHILDREN OF ALIEN INVESTORS. SEC. 0. ENHANCED PAY SCALE FOR CERTAIN FEDERAL EMPLOYEES ADMINISTERING THE EMPLOYMENT CREATION PROGRAM. SEC. 0. CONCURRENT FILING OF EB- PETITIONS AND APPLICATIONS FOR ADJUSTMENT OF STATUS. SEC. 0. CONFORMING AMENDMENTS. SEC. 0. TREATMENT OF PERIOD FOR PURPOSES OF NATURALIZATION. SEC. 0. EXEMPTION FROM THE ADMINISTRATIVE PROCEDURE ACT. SEC. 0. EXEMPTION FROM THE PAPERWORK REDUCTION ACT. 1

2 TITLE VI OTHER MATTERS SEC. 01. RULE OF CONSTRUCTION. SEC. 0. NO CREATION OF PRIVATE RIGHT OF ACTION. SEC. 0. SEVERABILITY. SEC. 0. EFFECTIVE DATES. TITLE I EMPLOYMENT CREATION VISAS AND REGIONAL CENTER PROGRAM SEC. 1. EB- IMMIGRANT VISAS NUMERICAL LIMIT AND ALLOCATION. Section (b)() of the Immigration and Nationality Act ( U.S.C. (b)()) is amended to read as follows: () EMPLOYMENT CREATION. (A) IN GENERAL. Visas shall be made available, in a number not to exceed.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 (including a limited partnership) (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 section A(a), and (ii) which will benefit the United States economy and create full-time employment for not fewer than 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 this paragraph shall be made available through September 0,, to qualified immigrants pooling their investments with 1 or more additional qualified immigrants in a new commercial enterprise (including a limited partnership) through a regional center in the United States, which has been designated by the Secretary on the basis of a proposal for the promotion of economic growth, including prospective job creation and increased domestic capital. (C) VISA SET-ASIDES. The number of visas allocated under paragraph ()(A) shall be reduced by per cent for qualified immigrants who invest in a new commercial enterprise through a regional center established under section A which will create employment in: (i) a rural area as defined under section A(e)(); and Commented [MR(1]: Grassley/Leahy, p.1, lines - with sunset date modification to. Commented [MR(]: Replaces Grassley/Leahy p., lines -.

3 (ii) an area within the geographic boundaries of any military installation that was closed, during the -year period immediately preceding the filing of an application for classification as an immigrant investor under this section, based upon a recommendation by the Defense Base Closure and Realignment Commission. (D) UNUSED VISAS. At the end of each fiscal year, any unused visa numbers that were reserved under subparagraph ()(C)(i) and (ii), shall be made generally available to immigrants who have filed applications for classification as an immigrant investor under this paragraph. (E) NUMERICAL LIMITATIONS. The numerical limitations of subparagraphs (A) and (C) shall only apply to principal aliens and not to the spouses or children of such aliens. SEC.. EB- IMMIGRANT INVESTORS AND REGIONAL CENTER PROGRAM Title of the United States Code is amended by adding a new section A ( U.S.C. a) to read as follows: SEC. A. EMPLOYMENT CREATION VISAS AND EB- REGIONAL CENTER PROGRAM (a) IN GENERAL. An alien seeking to enter the United States for the purpose of investing directly in a new commercial enterprise (including a limited partnership) or pooling his or her investment with 1 or more additional qualified immigrants in a new commercial enterprise through a regional center in the United States, must establish that such alien has: (1) invested or, is actively in the process of investing, the required capital specified in paragraph (b), and () has created full-time employment for not fewer than 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) REQUIRED CAPITAL INVESTMENT. (1) IN GENERAL. Except as otherwise provided in this paragraph, the amount of capital required for qualified immigrants seeking classification under section (b)() is [$,000]. () ADJUSTMENT OF REQUIRED CAPITAL. (A) PERIOD. The qualifying investment under subparagraph (b)(1) and (b)()(c) will increase every years based on the cumulative annual percentage change in

4 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 Statics. (B) ADJUSTMENT OF REQUIRED AMOUNT OF CAPITAL. (i) The Secretary may update the amount under subparagraph (b)(1) and (b)()(c), as adjusted by paragraph (A), by publication of a technical amendment in the Federal Register. (ii) The amount adjusted under paragraph subparagraph (b)(1) and (b)()(c) shall be applicable to any petition for classification of an alien as an immigrant investor under section (b)() or to remove the conditions on an alien investor s law permanent resident status under section A filed 0 days after the publication of such technical amendment in the Federal Register, and to any subsequent related petition under section A. (C) ADJUSTMENT FOR TARGETED EMPLOYMENT AREAS. The amount of capital required in the case of an investment in a targeted employment area is 00,000. () CONFIRMATION OF TARGETED EMPLOYMENT AREA. The Secretary of Homeland Security shall confirm designation of a targeted employment area and shall not be bound by the determination of any other governmental or nongovernmental entity. The Secretary of Homeland Security shall create and make available to the public a targeted employment area online mapping tool to confirm census tracts that are distressed urban or distressed rural tracts as defined under paragraph (e). (c) PETITION FOR CLASSIFICATION AS AN IMMIGRANT INVESTOR. (1) IN GENERAL. (A) An alien seeking classification as an immigrant investor under section (b)() must file a petition with the Secretary of Homeland Security, with the appropriate filing fees, and EB- Fraud Prevention and Detection Fee under section (w)(), and with such evidence as the Secretary shall prescribe. The approval of a petition for classification as an immigrant investor under section (b)() does not, by itself, establish that the alien is entitled to immigrant status. (B) An alien seeking classification as an immigrant investor under section (b)) must be years of age at the time of filing or not under years of age if investing via a valid guardianship account established under the Uniform Gift to Minors Act, the Uniform Transfers to Minors Act, or their equivalents under the laws of any State. () INVESTORS IN REGIONAL CENTER PROGRAM. An alien who is pooling or has pooled his or her investment with 1 or more additional qualified immigrants in a new Commented [MR(]: Grassley/Leahy, p., lines - (with slight modification)

5 commercial enterprise (including a limited partnership) through a regional center in the United States, may only file a petition for classification under section (b)() after the regional center has filed an application for approval of the particular regional center investment offering under paragraph (d)() that is the basis for the alien seeking such classification. () PRIORITY. Notwithstanding section (e), in processing petitions for classification as an immigrant investor under section (b)(), the Secretary (A) may process petitions in a manner and order established by the Secretary; and (B) may deem such petitions to include the required documentation under paragraph (c)(), if such documents were previously filed with, and approved by, the Secretary, and if the alien certifies at the time of filing that such documents are incorporated by reference into the alien s petition. () REQUIRED DOCUMENTATION. With each application for classification as an immigrant investor under section (b)(), the alien must include the following documentation: (A) (B) (C) (D) LAWFUL BUSINESS ENTITY. Any documents evidencing that the capital investment is going into a lawful business entity validly formed after November, 0, and validly created and operating under the laws of the jurisdiction in the United States in which it is located, including, but not limited to, (i) articles of incorporation, (ii) certificates of merger or consolidation, (iii) partnership agreements, (iv) certificate of limited partnership, (v) joint venture agreement, (vi) business trust agreement, or (vii) other similar organizational documents for the new commercial enterprise. JOB CREATION. Evidence that the new commercial enterprise has created or will create at least full-time positions for U.S. citizens, permanent residents, or aliens lawfully authorized to be employed (excluding the applicant, spouse, sons or daughters, and any nonimmigrants). TARGETED EMPLOYMENT AREA. Evidence, if applicable, that the new commercial enterprise or job-creating entity, as applicable, is located in a targeted employment area as defined under paragraph (e). MONETARY JUDGMENTS. Evidence of any monetary judgments against the immigrant investor, including true and correct copies of any judgments, and Commented [MR(]: Added to individual immigrant investor petitions as well Grassley/Leahy, p.1, lines -1 (with modification).

6 (E) evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving possible monetary judgments against the alien investor from any court in or outside the United States; SOURCES OF FUNDS. (i) IN GENERAL. The alien investor must establish that that he or she has invested or is actively in the process of investing the required amount of capital for the area in which the business is located. (ii) SOURCE OF FUNDS. The alien investor must establish that the capital required under section A(b) were obtained from a lawful source and through lawful means. (iii) REQUIRED INFORMATION. The petition must include all documents prescribed by the Secretary, including, but not limited to: (I) business and tax records, or similar records, including, but not limited to (aa) foreign business registration records, if applicable; (bb) to the extent such tax returns have been prepared, 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 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) any other evidence identifying any other source of capital; (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 (pending or otherwise) involving possible monetary judgments against the alien investor from any court in or outside the United States; and Commented [MR(]: The source of funds requirement applies to non-rc investors as well as RC. This is the current I- requirement for non-rc.

7 (III) the identity of all persons or other entities who transfer into the United States, on behalf of the investor any funds that are used to support the capital requirement under paragraph (b). (iii) PROHIBITIONS ON USE OF FUNDS FOR PUBLICLY AVAILABLE BONDS. Alien investor capital may not be utilized, by a new commercial enterprise or otherwise, to purchase municipal bonds or any other bonds, if such bonds are available on the same terms and conditions to the general public, either as part of a primary offering or from a secondary market. Nothing herein shall be interpreted to restrict a job creating entity from using bonds, be they publicly available or privately placed, to finance a capital investment project in which a new commercial enterprise also invests alien investor capital. () DETERMINATIONS ON PETITIONS FOR CLASSIFICATION AS AN IMMIGRANT INVESTOR. (A) (B) BURDEN. An alien has the burden of establishing that he or she is eligible classification as an immigrant investor under section (b)() at the time of filing a petition for such classification through adjudication of such petition. CONSIDERATIONS IN PETITION ADJUDICATION. (i) INDIRECT JOB CREATION. In determining compliance with the job creation requirement under section (b)()(a)(ii), the Secretary may find that 0% of the job creation requirement is satisfied through jobs that are estimated to be created indirectly through investment under this paragraph in accordance with this subparagraph. An employee of the new commercial enterprise or jobcreating entity may be considered to hold a job that has been directly created. (ii) JOB CREATION METHODOLOGIES. In determining compliance with the job creation requirement under section (b)()(a)(ii), the Secretary shall permit aliens seeking admission as an immigrant investor under section (b)() based on investment through a regional center to rely on economically and statistically valid methodologies for determining the number of jobs created by the alien s investment, including (I) jobs estimated to have been created directly, which may be verified using such methodologies, and (II) jobs estimated to have been created indirectly through capital investment, direct employment, revenues generated from exports, improved regional productivity, job creation, or Commented [MR(]: Grassley/Leahy p., lines - (with modification) Commented [MR(]: Grassley/Leahy p., lines - (with modification) Commented [MR(]: Grassley/Leahy p., lines - (with modification) Commented [MR(]: Grassley/Leahy p., lines - (with modification)

8 (C) increased domestic capital investment resulting from the program. (ii) JOB CREATION BASED ON PROSPECTIVE TENANTS. In determining compliance with the job creation requirement under section (b)()(a)(ii), the Secretary may include jobs estimated to be created under a methodology that attributes jobs to prospective tenants occupying commercial real estate created or improved by capital investments if the number of such jobs estimated to be created has been determined by an economically and statistically valid methodology and such jobs are not existing jobs that have been relocated. (iv) CONSTRUCTION ACTIVITY JOBS. Construction activity jobs, regardless of their duration, may satisfy the employment creation requirement under section (b)()(a)(ii) for alien investors investing in a new commercial enterprise through a regional center. A construction activity job may be considered a job that is created directly. DECISIONS. (i) WITHHOLDING ADJUDICATION. The Secretary may suspend adjudication of any petition for classification under section (b)() 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. (I) 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. (II) DENIAL FOR FRAUD, MISREPRESENTATION, AND CRIMINAL MISUSE. The Secretary of Homeland Security shall deny a petition for classification of an alien as an immigrant investor under section (b)() if the Secretary determines that the petition was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse. (III) NATIONAL SECURITY OR PUBLIC SAFETY. The Secretary of Homeland Security 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 Commented [MR(]: Grassley/Leahy p., line to p., line. Commented [MR(]: Grassley/Leahy p., lines - (with modification) Commented [MR(]: Grassley/Leahy p., lines -1 (with modification) Commented [MR(]: Grassley/Leahy p., lines to, and p., lines 1- with modification. Commented [MR(]: Grassley/Leahy, p., lines -; - with modification Commented [MR(]: Grassley/Leahy p., lines -0 (with modification)

9 (d) REGIONAL CENTER PROGRAM. interests of the United States for reasons relating to national security or public safety. (iii) LIMITATIONS ON JUDICIAL REVIEW. Subject to section (a)(), and notwithstanding any other provision of law (statutory or nonstatutory), including section of title, United States Code, or any other habeas corpus provisions, and sections 1 and 1 of such title, no court shall have jurisdiction to review: (I) a denial or revocation made under subclause (ii)(ii) of this subparagraph until the alien investor has exhausted all available administrative appeals. (II) a denial or revocation made under subclause (ii)(iii) of this subparagraph except for constitutional claims or questions of law raised upon a petition for review of a final order of removal filed with the appropriate courts of appeals under section. (1) IN GENERAL. The Secretary may prescribe the form and manner by which a regional center may request designation as a regional center, seek amendment of a previously approved designation or specific investment offering, or file an annual certification. () APPLICATION FOR DESIGNATION AS AN EB- REGIONAL CENTER. (A) IN GENERAL. An economic unit, public or private, in the United States that (i) will operate within a defined and limited geographic area, as described in the regional center proposal required under subparagraph (B)(i), and be consistent with the purpose of concentrating pooled investments within such area, and (ii) is seeking designation as an EB- Regional Center, must file a petition with the Secretary, with the appropriate filing fees, the documentation required under subparagraph (B), and such other information as the Secretary shall prescribe. (B) REQUIRED DOCUMENTATION. Each application for designation as a regional center must include the following documentation: (i) REGIONAL CENTER PROPOSAL. The proposal to establish a regional center must Commented [MR(]: Grassley/Leahy p., lines - and p., lines -, with modification. Commented [MR(]: Grassley/Leahy p. 1, lines - (with modification) Commented [MR(]: Grassley/Leahy p. 1, line through p., line (with slight modification).

10 (I) demonstrate that the pooled investment will have a significant economic impact on the defined geographic area, and (II) include reasonable predictions, supported by economically and statistically valid and transparent forecasting tools, concerning (aa) the amount of investment that will be pooled; (bb) the kinds of commercial enterprises that will receive such investments; (cc) 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 in place reasonably designed to monitor and administer new commercial enterprises 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 (as defined in section 1(a)()) 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; and (IV) include attestations under penalty of perjury and any information confirming that all persons involved with the regional center meet the requirements of section B(a)(1)(B), relating to the bona fides of persons involved with the regional center. (ii) REGIONAL CENTER INITIAL CERTIFICATION OF EXISTENCE OF POLICIES AND PROCEDURES REGARDING COMPLIANCE WITH SECURITIES LAWS. A certification, under penalty of perjury, from the regional center that, to the best of the certifier s knowledge, after a due diligence investigation, the regional center has policies and procedures in place to advise all parties associated with the regional center of the requirements to be in and remain in compliance with the securities laws of the United States and of any State in which the (I) offer, purchase, or sale of securities was conducted; Commented [MR(]: Grassley/Leahy p., line 0 through p., line (with modification).

11 (II) issue of securities was located; or (III) investment advice was provided by the regional center or parties associated with the regional center; and (iii) CONCURRENT REQUEST FOR APPROVAL OF SPECIFIC INVESTMENT OFFERING. If an entity seeking designation as a regional center is also submitting a request for approval of a particular investment offering concurrently with the application for designation, the entity must include all the required documentation under paragraph (d)()(b). () APPLICATION FOR APPROVAL OF SPECIFIC INVESTMENT OFFERING. (A) IN GENERAL. For each particular investment offering through an associated new commercial enterprise or affiliated job-creating entity, the regional center must file an application with the Secretary, with the appropriate filing fees, the EB- Fraud Prevention and Detection Fee under section (w)(), and with such other information as the Secretary shall prescribe. (B) REQUIRED DOCUMENTATION. Each application for approval of a specific investment offering must include: (i) (ii) (iii) (iv) COMPREHENSIVE BUSINESS PLAN. A comprehensive business plan for a specific capital investment project; ECONOMIC ANALYSIS. A credible economic analysis regarding estimated job creation that is based on economically and statistically valid methodologies; SEC DOCUMENTS. Any offering documents filed with the Securities and Exchange Commission under the Securities Act of ( U.S.C. a et seq.) or with the securities regulator of any State, as required by law; INVESTMENT AND OFFERING DOCUMENTS. 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 drafts prepared for use in connection with the offering as of the date of filing, which shall contain references, as appropriate to (I) any material investment risks associated with the new commercial enterprise and the job-creating entity; Commented [MR(]: Grassley/Leahy p., lines - (with modification). Commented [MR(]: Grassley/Leahy p., line through p., line 1.

12 (vi) (II) any conflicts of interest that currently exist or may arise among the regional center, new commercial enterprise, job-creating entity, or the principals or attorneys of the aforementioned entities; (III) any pending material litigation or bankruptcy, or adverse judgments or bankruptcy orders issued during the most recent -year period, in the United States or abroad, affecting the regional center, new commercial enterprise, any affiliated jobcreating entity, or any other enterprise in which any principal of the aforementioned entities held majority ownership at the time; and (IV) (aa) any fees, ongoing interest, or other compensation paid or to be paid by regional center, new commercial enterprise, or any issuer of securities intended to be offered to alien investors by 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 with actual knowledge of the regional center at the time of filing; POLICIES AND PROCEDURES FOR COMPLIANCE WITH SECURITIES LAWS. A description of the policies and procedures, including those related to internal and external due diligence, reasonably designed to cause the regional center and any issuer of securities intended to be offered to alien investors in connection with the relevant capital investment project to 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; and (vii) REGIONAL CENTER INITIAL CERTIFICATION OF EXISTENCE OF POLICIES AND PROCEDURES REGARDING COMPLIANCE WITH SECURITIES LAWS. A certification, under penalty of perjury, from the regional center and any issuer of securities intended to be offered to alien investors in connection with the relevant capital investment project that any parties associated with the regional center are in compliance with the securities laws of the United States and the laws of the applicable States in connection with the offer, purchase, or sale or its securities, Commented [MR(]: Grassley/Leahy p., line 0 through p., line (with modification).

13 () AMENDMENTS. to the best of the certifier s knowledge, after a due diligence investigation. (A) IN GENERAL. A regional center must file an application with the Secretary, with the appropriate filing fees, and EB- Fraud Prevention and Detection Fee under section (w)(), and with such information as the Secretary shall prescribe, at least days before any proposed changes may take effect if the regional center is seeking (i) (ii) (iii) (iv) (v) (vi) to change the regional center s organizational structure, ownership, or administration, including the sale of such center, or other arrangements which would result in individuals not previously subject to the requirements under section B becoming involved with the regional center, to amend an approved business plan for a capital investment project in order to meet the requirements under this section, to add or remove any regional center s principals, to change the industries of focus of the regional center, to add a new commercial enterprise affiliated with the regional center, to obtain approval of an exemplar for the new commercial enterprise before individual investors file their petitions for classification, or (vii) notify DHS of any changes in the name, organizational structure or administration, capital investment instruments, or offering memoranda (including changes in the economic analysis and underlying business plan used to estimate job creation) for a previously added new commercial enterprise associated with the regional center. (B) EXCEPTION. If exigent circumstances are present, a regional center may file an application under this paragraph not more than days after any changes listed in subparagraph (A). (C) AMENDMENTS MADE TO COMPLY WITH EB- REFORM ACT. On or after the date of enactment of the EB- Reform Act, any revision to any offering document or other component of a specific investment offering approved under this paragraph prior to the date of enactment of the EB- Reform Act, which revision is made for the purpose of complying with the requirements of such Act, shall not be considered a material change to a specific investment offering. Commented [MR(]: Grassley/Leahy p., lines -; - (with modification); added other categories from current I- application for when an amendment must be filed. Commented [MR(]: Grassley/Leahy p., lines - (with modification).

14 (D) REQUIRED DOCUMENTATION. Each amendment must include the following documentation: (E) (i) (ii) the required documentation under paragraph (d)()(b); and REGIONAL CENTER CERTIFICATION OF EXISTENCE OF POLICIES AND PROCEDURES REGARDING COMPLIANCE WITH SECURITIES LAWS. A certification, under penalty of perjury, from each regional center that, to the best of the certifier s knowledge, after a due diligence investigation, 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 all parties associated with the regional center 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 provided by the regional center or parties associated with the regional center. DECISIONS. (i) (ii) WITHHOLDING ADJUDICATION. The Secretary may suspend adjudication of any amendment 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. APPROVAL OF AMENDMENTS. (I) COMPLIANCE WITH INTEGRITY MEASURES. The Secretary may only approve an amendment under subparagraph (d)() after the Secretary determines that the regional center would remain compliant with section B(a)(1) following the implementation of the proposed changes listed in the amendment. (II) PUBLIC DISCLOSURE UPON APPROVAL OF AMENDMENT. After approval of an amendment, the regional center must publicly disclose the changes made by the amendment within days after the changes are implemented through a publicly available Commented [MR(]: Grassley/Leahy p., lines -1 (with modification).

15 website hosted by U.S. Citizenship and Immigration Services for a period of at least 0 days. (iii) DENIALS AND REVOCATIONS. (I) NOTICE OF DENIAL OR REVOCATION. The Secretary shall provide notice of the Secretary s denial of an amendment or revocation of an approved amendment under this subparagraph. (II) DENIAL FOR FRAUD, MISREPRESENTATION, AND CRIMINAL MISUSE. The Secretary of Homeland Security shall deny an application to amend a previously approved regional center proposal or specific investment offering if the Secretary determines that the application was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse. (III) NATIONAL SECURITY OR PUBLIC SAFETY. The Secretary of Homeland Security may deny an application to amend a previously approved regional center proposal or specific investment offering, or revoke an approved application, amendment, or specific investment offering under this section if the Secretary determines that approval of such an application, amendment, or specific investment offering would be contrary to the national interests of the United States for reasons relating to national security or public safety. (iii) LIMITATIONS ON JUDICIAL REVIEW. Subject to section (a)(), and notwithstanding any other provision of law (statutory or nonstatutory), including section of title, United States Code, or any other habeas corpus provisions, and sections 1 and 1 of such title, no court shall have jurisdiction to review: (I) a denial or revocation made under subclause (ii)(ii) of this subparagraph until the regional center has exhausted all available administrative appeals. (II) a denial or revocation made under subclause (ii)(iii) of this subparagraph except for constitutional claims or questions of law raised upon a petition for review of a final order of removal filed with the appropriate courts of appeals under section. () REGIONAL CENTER ANNUAL STATEMENTS. (A) IN GENERAL. A previously approved regional center must file an annual statement with the Secretary, with the appropriate filing fees, the EB- Commented [MR(]: Grassley/Leahy p., lines to, and p., lines 1- (with modification). Commented [MR(]: Grassley/Leahy, p., lines -; - (with modification). Commented [MR(]: Grassley/Leahy p., lines -0 (with modification). Commented [MR(]: Grassley/Leahy p., lines - and p., lines -, (with modification). Commented [MR(0]: Grassley/Leahy p., line through p., line (with modification).

16 Regional Center Integrity Fee under section, and in the manner and form prescribed by the Secretary, by no later than January 1 of each fiscal year. (B) REQUIRED DOCUMENTATION. Each annual statement must include (i) a certification stating that, to the best of the certifier s knowledge, after a due diligence investigation, the regional center, the new commercial enterprise, and any affiliated job-creating entity is in compliance with section B(a)(1); (ii) a certification of compliance with section B(a)() by stating that (I) the certifier is in a position to have knowledge of the policies and procedures to advise parties associated with the regional center; (II) to the best of the certifier s knowledge, after a due diligence investigation, all parties have been advised to comply 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, or the issuer of securities was located, or the investment advice was provided; and (III) records, data, and information related to such offers, purchases, and sales have been maintained; (iii) (iv) (v) (vi) a certification stating that, to the best of the certifier s knowledge, after a due diligence investigation, the regional center is in compliance with section B(a)()(C); a description, to the best of the certifier s knowledge, any pending material litigation or bankruptcy proceedings, or litigation or bankruptcy proceedings resolved during the preceding fiscal year, involving the regional center, new commercial enterprise, or any affiliated job-creating entity; an accounting of all foreign investor capital invested in the regional center, new commercial enterprise, or affiliated job-creating entity; for each new commercial enterprise associated with the regional center (I) an accounting of the aggregate capital invested in the new commercial enterprise and job-creating entity by alien investors under this paragraph for each capital investment project being undertaken by the new commercial enterprise;

17 (II) (III) (IV) (V) (VI) a description of how the capital described in subclause (I) is being used to execute each capital investment project in the filed business plan or plans; evidence that 0 percent of the capital described in subclause (I) has been committed to each capital investment project, and, to the extent such capital has been repaid to the new commercial enterprise, evidence that 0 percent of the capital had been invested in the capital investment project and an accounting of use of the capital after such repayment; detailed evidence of the progress made toward the completion of each capital investment project; an accounting of the aggregate direct jobs created or preserved; to the best of the regional center s knowledge, for 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, new commercial enterprise, any affiliated job-creating entity or affiliated issuer of securities intended to be offered to alien investors, or any promotor, finder, broker-dealer or other entity engaged by any of the foregoing to locate individual investors (aa) a description of all fees collected; (bb) an accounting of the entities that received such fees; and (cc) the purpose for which such fees were collected; (VII) any documentation referred to in subparagraph (d)()(b)(iv) if there has been a material change during the preceding fiscal year; and (VIII) a certification by the regional center that such statements are accurate, to the best of the certifier s knowledge, after a due diligence investigation; and (vii) a description, to the best of the regional center s knowledge, of all fees including administrative fees, loan monitoring fees, loan management fees collected from alien investors by the regional center; and

18 (viii) a description of the regional center s policies and procedures that are designed to enable the regional center to comply with applicable Federal labor laws. (C) AMENDMENTS TO ANNUAL STATEMENT. The Secretary (i) (ii) shall require the regional center to amend or supplement an annual statement required under subparagraph (d)() if the Secretary determines that such statement is deficient; and may require the regional center to amend or supplement such annual statement if the Secretary determines that such an amendment or supplement is appropriate. (D) SANCTIONS. Any regional center that fails to file an annual statement or knowingly submits untrue statements or conducts itself in a manner inconsistent with its designation shall be sanctioned in accordance with section B(). () PRIORITY; PREMIUM PROCESSING. (A) IN GENERAL. 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 to such applications and certifications, notwithstanding other pending applications or petitions filed under other employment-based visa categories. (B) PREMIUM PROCESSING OF EB- REGIONAL CENTER APPLICATIONS. (i) In General. An entity seeking designation as an EB- Regional Center or an amendment of a previously approved regional center may request that USCIS process the application within 0 days. (ii) Response to Premium Processing Request. If USCIS cannot render a final decision on the application or petition for which premium processing was requested, as evidenced by an approval notice, denial notice, or notice of intent to deny, USCIS will refund the premium processing service fee. (e) DEFINITIONS. As used in this section (1) AFFILIATED JOB-CREATING ENTITY- The term affiliated job-creating entity means any job-creating entity that is controlled, managed, or owned by any of the persons involved with the regional center or new commercial enterprise as defined in this paragraph. Commented [MR(1]: Grassley/Leahy, p.1, lines -1 (with modification). Commented [MR(]: Grassley/Leahy p., line through p., line, (with modification).

19 () CAPITAL The term capital (A) means cash (including the cash proceeds of indebtedness, be it secured or unsecured) 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; (B) 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; (C) shall not include unsecured promissory notes or promissory notes secured by foreign property; and (D) shall not include assets acquired, directly or indirectly, by unlawful means, including any cash proceeds of indebtedness secured by such assets. () CERTIFIER The term certifier means a person in a position of substantive authority for the management or operations of a regional center, new commercial enterprise, affiliated job-creating entity, or issuer of securities under common control with any of such entities, such as a principal executive officer or principal financial officer, with knowledge of such entities policies and procedures related to compliance with the requirements under this paragraph. () CPI-U The term CPI-U means the unadjusted All Items Consumer Price Index for All Urban Consumers. () DISTRESSED RURAL CENSUS TRACT The term distressed rural census tract means any population census tract where, based on the most recent five year estimates of the American Community Survey (A) the poverty rate for such tract is at least percent, or (B) the median family income for such tract does not exceed 0 percent of the statewide median family income, or (C) such tract is greater than 0 square miles in area and has a population density of fewer than 0 people per square mile, regardless of poverty rate or median family income criteria. () DISTRESSED URBAN CENSUS TRACT The term distressed urban census tract means any population census tract that, based on the most recent five year estimates of the American Community Survey, is

20 (A) inside a metropolitan statistical area, and (B) the poverty rate for such tract is greater than 0 percent, and (C) the median family income for such tracts does not exceed 0 percent of the greater of the statewide median family income or the metropolitan statistical area median family income, and (D) the unemployment rate for such census tract is at least 1. times the national average. () EMPLOYEE The term employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other renumeration directly from the new commercial enterprise. In the case of a Regional Center, employee also means an individual who provides services or labor in a job that has been created indirectly through the alien investor s investment in a new commercial enterprise. () FULL-TIME EMPLOYMENT The term full-time employment means employment in a position that requires at least hours of service per week at any time, regardless of who fills the position. () JOB-CREATING ENTITY The term job-creating entity means any organization that (A) 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 paragraph (d); and (B) is responsible for creating jobs to satisfy the requirement under section (b)()(a)(ii). () NEW COMMERCIAL ENTERPRISE The term new commercial enterprise means any for-profit organization 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 investors under this paragraph.. () PARTY(IES) ASSOCIATED WITH A REGIONAL CENTER The term party(ies) associated with a regional center means (A) the regional center;

21 (B) any new commercial enterprise or affiliated job-creating entity or issuer of securities under common control with the regional center; and (C) any person involved with a regional center, new commercial enterprise, or job-creating entity. () PERSONS INVOLVED WITH A REGIONAL CENTER, NEW COMMERCIAL ENTERPRISE, OR JOB-CREATING ENTITY The term persons involved with a regional center, new commercial enterprise, or affiliated job-creating entity means a person is involved with a regional center, a new commercial enterprise, any affiliated job-creating entity, as applicable, if the person is, directly or indirectly, a controlling owner or in a position of substantive authority to make operational or managerial decisions over any pooling, securitization, investment, release, acceptance, or control or use of any funding that was procured under the EB- Regional Center Program under section A(b). An individual may be in a position of substantive authority if the person serves as a principal, representative, administrator, controlling owner, officer, board member, manager, executive, general partner, fiduciary, or in a similar position at the regional center, new commercial enterprise, or job-creating entity, respectively. () PRINCIPAL A person is a principal or legal entity or organization that is a controlling owner of the regional center entity, that is in a position of executive managerial authority over the regional center entity, or that is otherwise in a position to control, influence, or direct the management or policies of the regional center. () RURAL AREA The term rural area means any area that, based on the most recent decennial census of the United States, is (A) outside of the outer boundary of any city or town having a population of,000 or more; and (B) (i) is outside of a metropolitan statistical area; or (ii) is within any census tract that is greater than 0 square miles in area and has a population density of fewer than 0 people per square mile. () TARGETED EMPLOYMENT AREA. The term targeted employment area means (i) a census tract that, at the time of filing of an exemplar petition, is a distressed rural census tract or distressed urban census tract, or (ii) an area within the geographic boundaries of any military installation that was closed, during the -year period immediately preceding the filing of an application for classification as an immigrant investor under this section, based upon a recommendation by the Defense Base Closure and Realignment Commission. Commented [MR(]: Grassley/Leahy p., lines - (with modification).

22 TITLE III EB- INTEGRITY, FRAUD PREVENTION AND DETECTION ACCOUNT SEC. 01. EB- ACCOUNT Section of the Immigration and Nationality Act ( U.S.C. ) is amended by adding a new paragraph (w) to read as follows: (w) EB- INTEGRITY, FRAUD PREVENTION AND DETECTION ACCOUNT. (1) IN GENERAL. There is established in the general fund of the Treasury a separate account, which shall be known as the EB- Integrity, Fraud Prevention and Detection Account. All fees collected under section A of the Immigration and Nationality Act shall be deposited as offsetting receipts into this account. The amounts deposited into such account shall remain available to the Secretary of Homeland Security until expended as prescribed and for such purposes as noted in paragraph (w)(). () EB- PETITION AND APPLICATION FILING FEES. (A) The Secretary may impose a filing fee set at a level sufficient to ensure full recovery of the costs for processing and adjudicating any applications or petitions under section (b)() and section A, and any additional costs associated with administration of the EB- program. (B) The Secretary may adjust this fee according to the Consumer Price Index and to ensure that the funds in the EB- Integrity, Fraud Detection and Prevention Account under this section are sufficient to carry out the purposes set forth in paragraph (w)(). () EB- PREMIUM PROCESSING FEE. (A) The Secretary is authorized to establish and collect a premium fee for applications for designation as an EB- Regional Center and amendments to a previously approved regional center. (B) The fee shall be set at $,000 and paid in addition to any normal petition or application fee that may be applicable, and shall be deposited as offsetting collection in the EB- Integrity, Fraud Prevention and Detection Account. (C) The Secretary may adjust this fee according to the Consumer Price Index and to ensure that the funds in the EB- Integrity, Fraud Detection and Prevention Account under this section are sufficient to carry out the purposes set forth in paragraph (w)(). (B) EB- REGIONAL CENTER INTEGRITY FEE. Commented [MR(]: Grassley/Leahy p., lines - (with modification). Commented [MR(]: Grassley/Leahy p., lines -.

23 (i) In addition to the filing fee, the Secretary shall impose an EB- Regional Center Integrity Fee on each annual statement for a regional center filed under section A(d)(). (ii) The amount of the fee imposed under clause (i) shall be $,000. (I) For regional centers that have less than total investors in the preceding fiscal year in the new commercial enterprise the fee shall be $,000. (II) For approved regional centers with no investors, the fee is $0 for up to two fiscal years after the date of enactment. (iii) Fees collected under this paragraph shall be deposited in the Treasury in accordance with section (w) of the Act. () PERMISSIBLE USES OF FUNDS. The Secretary shall: (A) use not less than ¼ of the amounts deposited into the Fund to conduct audits and site visits (with or without notice) of regional centers, new commercial enterprises, and any affiliated job-creating entities; (B) use not less than ¼ of the amounts deposited into the Fund for investigations based outside of the United States, including (i) Monitoring and investigating program-related events and promotional activities; and (ii) Ensuring compliance of alien investors with section A(d) of the Act; (C) use not less than ¼ of the amounts deposited into the Fund to (i) hire and train additional immigration officers, economists, and support staff needed to adjudicate cases and reduce the backlog and processing times for EB- applications and petitions, and (ii) hire and train additional Fraud Detection and National Security (FDNS) officers to conduct annual site visits of regional centers and all new commercial enterprises. (D) use not less than 1/ of the amounts deposited into the Fund to develop a technological system that will allow for an online targeted employment area mapping tool to confirm census tracts for distressed urban and rural tracts, and for electronic filing, adjudication, and archiving of EB- applications, Commented [MR(]: Grassley/Leahy p., lines -0 and p., line 1 (with modification).