EB-5 VISA REFORMS.

SEC. 102. EB-5 VISA REFORMS. (a) Employment Creation.—Section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)) is amended— (1) in subparagraph (A)— (A) in clause (i), by striking “(C), and” and inserting “(C) and which is expected to remain invested for not less than 2 years; and”; and (B) in clause (ii)— (i) by striking “and create” and inserting “by creating”; and (ii) by inserting “, United States nationals,” after “citizens”; (2) by amending subparagraph (B) to read as follows: “(B) Designations and reserved visas.— “(i) Reserved visas.— “(I) In general.—Of the visas made available under this paragraph in each fiscal year— “(aa) 20 percent shall be reserved for qualified immigrants who invest in a rural area; “(bb) 10 percent shall be reserved for qualified immigrants who invest in an area designated by the Secretary of Homeland Security under clause (ii) as a high unemployment area; and “(cc) 2 percent shall be reserved for qualified immigrants who invest in infrastructure projects. “(II) Unused visas.— “(aa) Carryover.—At the end of each fiscal year, any unused visas reserved for qualified immigrants investing in each of the categories described in items (aa) through (cc) of subclause (I) shall remain available within the same category for the immediately succeeding fiscal year. “(bb) General availability.—Visas described in items (aa) through (cc) of subclause (I) that are not issued by the end of the succeeding fiscal year referred to in item (aa) shall be made available to qualified immigrants described under subparagraph (A). “(ii) Designation of high unemployment area.— “(I) In general.—The Secretary of Homeland Security, or a designee of the Secretary who is an employee of the Department of Homeland Security, may designate, as a high unemployment area, a census tract, or contiguous census tracts, in which— “(aa) the new commercial enterprise is principally doing business; and “(bb) the weighted average of the unemployment rate for the census tracts, based on the labor force employment measure for each applicable census tract and any adjacent tract included under subclause (III), is not less than 150 percent of the national average unemployment rate. “(II) Prohibition on designation by any other official.—A targeted employment area may not be designated as a high unemployment area by— “(aa) a Federal official other than the Secretary of Homeland Security or a designee of the Secretary; or “(bb) any official of a State or local government. “(III) Inclusion.—In making a designation under subclause (I), the Secretary of Homeland Security may include a census tract directly adjacent to a census tract or contiguous census tracts described in that subclause. “(IV) Duration.— “(aa) In general.—A designation under this clause shall be in effect for the 2-year period beginning on— “(AA) the date on which an application under subparagraph (F) is filed; or “(BB) in the case of an alien who is not subject to subparagraph (F), at the time of investment. “(bb) Renewal.—A designation under this clause may be renewed for 1 or more additional 2-year periods if the applicable area continues to meet the criteria described in subclause (I). “(V) Additional investment not required.—An immigrant investor who has invested the amount of capital required by subparagraph (C) in a targeted employment area designated as a high unemployment area during the period in which the area is so designated shall not be required to increase the amount of investment due to the expiration of the designation. “(iii) Infrastructure projects.— “(I) In general.—The Secretary of Homeland Security shall determine whether a specific capital investment project meets the definition of ‘infrastructure project’ set forth in subparagraph (D)(iv). “(II) Prohibition on designation by any other official.—A determination under subclause (I) may not be made by— “(aa) a Federal official other than the Secretary of Homeland Security or a designee of the Secretary; or “(bb) any official of a State or local government.” ; (3) in subparagraph (C)— (A) in clause (i), by striking “$1,000,000” and all that follows through “previous sentence” and inserting “$1,050,000”; (B) by amending clause (ii) to read as follows: “(ii) Adjustment for targeted employment areas and infrastructure projects.—The amount of capital required under subparagraph (A) for an investment in a targeted employment area or in an infrastructure project shall be $800,000.” ; (C) by redesignating clause (iii) as clause (iv); (D) by inserting after clause (ii) the following: “(iii) Automatic adjustment in minimum investment amount.— “(I) In general.—Beginning on January 1, 2027, and every 5 years thereafter, the amount in clause (i) shall automatically adjust for petitions filed on or after the effective date of each adjustment, based on the cumulative annual percentage change in the unadjusted consumer price index for all urban consumers (all items; U.S. city average) reported by the Bureau of Labor Statistics between January 1, 2022, and the date of adjustment. The qualifying investment amounts shall be rounded down to the nearest $50,000. The Secretary of Homeland Security shall update such amounts by publication of a technical amendment in the Federal Register. “(II) Beginning on January 1, 2027, and every 5 years thereafter, the amount in clause (ii) shall automatically adjust for petitions filed on or after the effective date of each adjustment, to be equal to 75 percent of the standard investment amount under subclause (I).” ; and (E) in clause (iv), as redesignated, in the undesignated matter following subclause (II)— (i) by striking “Attorney General” and inserting “Secretary of Homeland Security”; and (ii) by inserting “, as adjusted under clause (iii)” before the period at the end; and (4) by amending subparagraph (D) to read as follows: “(D) Definitions.—In this paragraph: “(i) 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 people involved with the regional center or new commercial enterprise under section 203(b)(5)(H)(v). “(ii) Capital.—The term ‘capital’— “(I) means cash and all real, personal, or mixed tangible assets owned and controlled by the alien investor, or held in trust for the benefit of the alien and to which the alien has unrestricted access; “(II) shall be valued at fair market value in United States dollars, in accordance with Generally Accepted Accounting Principles or other standard accounting practice adopted by the Securities and Exchange Commission, at the time it is invested under this paragraph; “(III) does not include— “(aa) assets directly or indirectly acquired by unlawful means, including any cash proceeds of indebtedness secured by such assets; “(bb) capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien investor and the new commercial enterprise; “(cc) capital invested with a guaranteed rate of return on the amount invested by the alien investor; or “(dd) except as provided in subclause (IV), capital invested that is subject to any agreement between the alien investor and the new commercial enterprise that provides the investor with a contractual right to repayment, such as a mandatory redemption at a certain time or upon the occurrence of a certain event, or a put or sell-back option held by the alien investor, even if such contractual right is contingent on the success of the new commercial enterprise, such as having sufficient available cash flow; and “(IV) includes capital invested that— “(aa) is subject to a buy back option that may be exercised solely at the discretion of the new commercial enterprise; and “(bb) results in the alien investor withdrawing his or her petition unless the alien investor has fulfilled his or her sustainment period and other requirements under this paragraph. “(iii) 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, 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. “(iv) Infrastructure project.—The term ‘infrastructure project’ means a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a Federal, State, or local agency or authority) that is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the regional center program described in subparagraph (E) from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project. “(v) Job-creating entity.—The term ‘job-creating entity’ means any organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), corporation, limited liability company, business trust, or other entity, which may be publicly or privately owned, including an entity consisting of a holding company and its wholly owned subsidiaries or affiliates (provided that each subsidiary or affiliate is engaged in an activity formed for the ongoing conduct of a lawful business) that receives, or is established to receive, capital investment from alien investors or a new commercial enterprise under the regional center program described in this subparagraph and which is responsible for creating jobs to satisfy the requirement under subparagraph (A)(ii). “(vi) 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 sole proprietorship, partnership (whether limited or general), holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business), joint venture, corporation, business trust, limited liability company, or other entity (which may be publicly or privately owned) that receives, or is established to receive, capital investment from investors under this paragraph. “(vii) Rural area.—The term ‘rural area’ means any area other than an area within a metropolitan statistical area (as designated by the Director of the Office of Management and Budget) 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). “(viii) Targeted employment area.—The term ‘targeted employment area’ means, at the time of investment, a rural area or an area designated by the Secretary of Homeland Security under subparagraph (B)(ii) as a high unemployment area.” . (b) 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 who has reached 21 years of age and has been 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 or subsection (b)(5)(M), 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 reaches 21 years of age.” . (c) [8 U.S.C. 1153 note] Enhanced Pay Scale for Certain Federal Employees Administering the Employment Creation Program.—The Secretary of Homeland Security may establish, fix the compensation of, and appoint individuals to designated critical, 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). (d) Concurrent Filing of EB-5 Petitions and Applications for Adjustment of Status.—Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended— (1) in subsection (k), in the matter preceding paragraph (1), by striking “or (3)” and inserting “(3), or (5)”; and (2) by adding at the end the following: “(n) If the approval of a petition for classification under section 203(b)(5) would make a visa immediately available to the alien beneficiary, the alien beneficiary’s application for adjustment of status under this section shall be considered to be properly filed whether the application is submitted concurrently with, or subsequent to, the visa petition.” . (e) [8 U.S.C. 1153 note] Effective Date.—The amendments made by this section shall take effect on the date of the enactment of this Act.