United States Code [USC] Title 8—ALIENS AND NATIONALITY CHAPTER 12—IMMIGRATION AND NATIONALITY SUBCHAPTER II—IMMIGRATION Part I—Selection System * * * * *8 USC §1153 Allocation of immigrant visas [INA § 203] * * * * *(b) Preference allocation for employment-based immigrants Aliens subject to the worldwide level specified in section 1151(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows: * * * * * (5) Employment creation (A) In general Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise (including a limited partnership)— (i) in which such alien has invested (after November 29, 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and (ii) which will benefit the United States economy and create full-time employment for not fewer than 10 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 immigrants spouse, sons, or daughters).
(B) Set-aside for targeted employment areas (i) In general Not less than 3,000 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 will create employment in a targeted employment area. (ii) “Targeted employment area” defined In this paragraph, the term “targeted employment area” means, at the time of the investment, a rural area or an area which has experienced high unemployment (of at least 150 percent of the national average rate). (iii) “Rural area” defined In this paragraph, 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). (C) Amount of capital required (i) In general Except as otherwise provided in this subparagraph, the amount of capital required under subparagraph (A) shall be $1,000,000. The Secretary of Homeland Security1, in consultation with the Secretary of Labor and the Secretary of State, may from time to time prescribe regulations increasing the dollar amount specified under the previous sentence.1 The statute as originally written vested certain authority in the Attorney General, which hasshifted to the Secretary of Homeland Security. The three mentions of the Cabinet Level Officialin this selection have been changed accordingly.
(ii) Adjustment for targeted employment areas The Secretary of Homeland Security may, in the case of investment made in a targeted employment area, specify an amount of capital required under subparagraph (A) that is less than (but not less than ½ of) the amount specified in clause (i). (iii) Adjustment for high employment areas In the case of an investment made in a part of a metropolitan statistical area that at the time of the investment— (I) is not a targeted employment area, and (II) is an area with an unemployment rate significantly below the national average unemployment rate, the Secretary of Homeland Security may specify an amount of capital required under subparagraph (A) that is greater than (but not greater than 3 times) the amount specified in clause (i). (D) Full-time employment defined In this paragraph, the term “full-time employment” means employment in a position that requires at least 35 hours of service per week 2 at any time, regardless of who fills the position. Please consider the timing of the 2002 amendments which seemed to address certain issues that had just been litigated! Congress did not fully articulate in (D) what the Court said or what IT (Congress) truly meant.2 INS originally allowed “job-sharing” arrangements to count for the stand-alone entrepreneur.Job-sharing is not the same as simply adding multiple part-time jobs of side-by-side co-workersto count as being equal to full-time positions. It is most likely that Congress meant to allowFull-Time Equivalent (FTE) calculations as used in standard economic models to be allowed butonly in the “Pilot Immigration Program” which allows “indirect jobs” for Regional Centeraffiliated investors as determined by “reasonable methodologies”. It is most likely that Congressdid not mean to include FTEs outside of the Regional Center context or allow any unauthorizedworkers (illegal aliens) to count in the mix for ANYONE!
8 USC § 1153 NOTE PILOT IMMIGRATION PROGRAM Pub. L. 110–329, div. A, §144, Sept. 30, 2008, 122 Stat. 3581, as amended by Pub. L. 111–8, div. J, §101, Mar. 11, 2009, 123 Stat. 988, provided that: “The requirement set forth in section610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and RelatedAgencies Appropriations Act, 1993 [Pub. L. 102–395] (8 U.S.C. 1153 note) shall continuethrough September 30, 2009 3.” Pub. L. 102–395, title VI, §610, Oct. 6, 1992, 106 Stat. 1874, as amended by Pub. L. 105–119, title I, §116(a), Nov. 26, 1997, 111 Stat. 2467; Pub. L. 106–396, §402, Oct. 30, 2000, 114Stat. 1647; Pub. L. 107–273, div. C, title I, §11037(a), Nov. 2, 2002, 116 Stat. 1847; Pub. L.108–156, §4, Dec. 3, 2003, 117 Stat. 1945; Pub. L. 111–83, title V, §548, Oct. 28, 2009, 123Stat. 2177, provided that: “(a) Of the visas otherwise available under section 203(b)(5) of the Immigration andNationality Act (8 U.S.C. 1153(b)(5)), the Secretary of State, together with the Secretary ofHomeland Security, shall set aside visas for a pilot program to implement the provisions of suchsection. Such pilot program shall involve a regional center in the United States, designated bythe Secretary of Homeland Security on the basis of a general proposal, for the promotion ofeconomic growth, including increased export sales, improved regional productivity, job creation,or increased domestic capital investment. A regional center shall have jurisdiction over alimited geographic area, which shall be described in the proposal and consistent with thepurpose of concentrating pooled investment in defined economic zones. The establishment ofa regional center may be based on general predictions, contained in the proposal, concerningthe kinds of commercial enterprises that will receive capital from aliens, the jobs that will becreated directly or indirectly as a result of such capital investments, and the other positiveeconomic effects such capital investments will have. “(b) For purposes of the pilot program established in subsection (a), beginning on October 1,1992, but no later than October 1, 1993, the Secretary of State, together with the Secretary ofHomeland Security, shall set aside 3,000 visas annually until September 30, 2012 to includesuch aliens as are eligible for admission under section 203(b)(5) of the Immigration andNationality Act [8 U.S.C. 1153(b)(5)] and this section, as well as spouses or children which areeligible, under the terms of the Immigration and Nationality Act [8 U.S.C. 1101 et seq.], toaccompany or follow to join such aliens. “(c) In determining compliance with section 203(b)(5)(A)(iii)[(ii)] of the Immigration andNationality Act [8 U.S.C. 1153(b)(5)(A)(iii)[(ii)]], and notwithstanding the requirements of 8 CFR204.6, the Secretary of Homeland Security shall permit aliens admitted under the pilotprogram described in this section to establish reasonable methodologies for determining thenumber of jobs created by the pilot program, including such jobs which are estimated to havebeen created indirectly through revenues generated from increased exports, improved regionalproductivity, job creation, or increased domestic capital investment resulting from the pilotprogram. “(d) In processing petitions under section 204(a)(1)(H) of the Immigration and Nationality Act(8 U.S.C. 1154(a)(1)(H)) for classification under section 203(b)(5) of such Act (8 U.S.C.1153(b)(5)), the Secretary of Homeland Security may give priority to petitions filed by aliens3 It was extended again through 2012, and a bill has passed the Senate (in August 2012) foranother three-year extension. It is expected to pass through the House as well.
seeking admission under the pilot program described in this section. Notwithstanding section203(e) of such Act (8 U.S.C. 1153(e)), immigrant visas made available under such section203(b)(5) may be issued to such aliens in an order that takes into account any priority accordedunder the preceding sentence.” [Pub. L. 107–273, div. C, title I, §11037(b), Nov. 2, 2002, 116 Stat. 1848, provided that: “Theamendments made by this section [amending section 610 of Pub. L. 102–395, set out above]shall take effect on the date of the enactment of this Act [Nov. 2, 2002] and shall apply to— “(1) any proposal for a regional center pending before the Attorney General (whether for an initial decision or on appeal) on or after the date of the enactment of this Act; and “(2) any of the following petitions, if filed on or after the date of the enactment of this Act: “(A) A petition under section 204(a)(1)(H) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any predecessor provision) (or any predecessor provision), with respect to status under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)). “(B) A petition under section 216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) to remove the conditional basis of an aliens permanent resident status.”] [Section 116(b) of Pub. L. 105–119 provided that: “The amendment made by subsection(a)(2) [amending section 610 of Pub. L. 102–395, set out above] shall be deemed to havebecome effective on October 6, 1992.”] AMENDMENTS 2002—Subsec. (b)(5)(A). Pub. L. 107–273, §11036(a)(1)(A), substituted “enterprise(including a limited partnership)—” for “enterprise—” in introductory provisions. Subsec. (b)(5)(A)(i) to (iii). Pub. L. 107–273, §11036(a)(1)(B), (C), redesignated cls. (ii) and(iii) as (i) and (ii), respectively, and struck out former cl. (i) which read as follows: “which thealien has established,”. Subsec. (b)(5)(B)(i). Pub. L. 107–273, §11036(a)(2), substituted “invest in” for “establish”. Subsec. (b)(5)(D). Pub. L. 107–273, §11035, added subpar. (D). 1994—Subsec. (b)(5)(B), (C). Pub. L. 103–416, §219(c), substituted “Targeted” and“targeted” for “Targetted” and “targetted”, respectively, wherever appearing in headings andtext. 1991—Subsec. (b)(4), (5)(A). Pub. L. 102–232, §302(b)(2)(C), substituted “7.1 percent ofsuch worldwide level” for “10,000”. 1990—Subsec. (b). Pub. L. 101–649, §§111(1), 121(a), added subsec. (b) and redesignatedformer subsec. (b) as (d). [IMMACT90]SUMMARY: The former “Special Immigrant” Nonquota/Nonpreference Visa was issuedpursuant to former INA § 101(a)(27) [8 USC § 1101(a)(27)] as a Regulatory DefinedLabor Certification Exemption for an “Investor” as an Interpretation of the “OtherQualified Immigrant” found in former INA § 203(a)(8) [8 USC § 1153(a)(8)]. Legacy INSpromulgated 8 CFR § 212.8(b)(4) in the Federal Register in 1966. This immigration benefitfirst appeared in the Code of Federal Regulation in 1967. This visa was made statutory byCongress in 1990, at INA § 203(b)(5) as employment-based 5th preference: EB-5.