Immigrant investor statutes as of 2 18-2012

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Stay current. Do not rely on quoted text in AAO, BIA, or Court Decisions as they may have cut and pasted an outdated version or the law has changed since it was written.

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Immigrant investor statutes as of 2 18-2012

  1. 1. INA § 203 [8 U.S.C. 1153] ALLOCATION OF IMMIGRANT VISAS(b) Preference Allocation for Employment-Based Immigrants. - Aliens subject to the worldwidelevel specified in section 201(d) for employment-based immigrants in a fiscal year shall beallotted visas as follows:(5) Employment creation. -(A) In general. - Visas shall be made available, in a number not to exceed 7.1 percent of suchworldwide level, to qualified immigrants seeking to enter the United States for the purpose ofengaging in a new commercial 4/ enterprise (including a limited partnership)--(i) 4/ in which such alien has invested (after the date of the enactment of the Immigration Act of1990) or, is actively in the process of investing, capital in an amount not less than the amountspecified in subparagraph (C), and(ii) 4/ which will benefit the United States economy and create full-time employment for notfewer than 10 United States citizens or aliens lawfully admitted for permanent residence or otherimmigrants lawfully authorized to be employed in the United States (other than the immigrantand 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 eachfiscal year shall be reserved for qualified immigrants who 4/ invest in a new commercialenterprise described in subparagraph (A) which will create employment in a targetedemployment area.(ii) Targeted employment area defined. - In this paragraph, the term ``targeted employment areameans, at the time of the investment, a rural area or an area which has experienced highunemployment (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 anarea within a metropolitan statistical area or within the outer boundary of any city or town havinga 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 capitalrequired under subparagraph (A) shall be $1,000,000. The Attorney General, in consultation withthe Secretary of Labor and the Secretary of State, may from time to time prescribe regulationsincreasing the dollar amount specified under the previous sentence.(ii) Adjustment for targeted employment areas.- The Attorney General may, in the case ofinvestment made in a targeted employment area, specify an amount of capital required undersubparagraph (A) that is less than (but not less than 1/2 of) the amount specified in clause (i). 1
  2. 2. (iii) Adjustment for high employment areas.-In the case of an investment made in a part of ametropolitan 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 averageunemployment rate, the Attorney General may specify an amount of capital required undersubparagraph (A) that is greater than (but not greater than 3 times) the amount specified in clause(I).(D) 4/ Full-time employment defined.--In this paragraph, the term `full-time employment meansemployment in a position that requires at least 35 hours of service per week at any time,regardless of who fills the position.*****FN 4 Section 203(b)(5)(A) and (B)(i) were amended by section 11036(a)(1) and (2) of the21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273,dated November 2, 2002.(c) Effective Date.--The amendments made by section 11036 shall take effect on the date of theenactment of this Act (Public Law 107-273 dated November 2, 2002) and shall apply to alienshaving any of the following petitions pending on or after the date of the enactment of this Act:(1) 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), with respect to status under section 203(b)(5) ofsuch Act (8 U.S.C. 1153(b)(5)).(2) A petition under section 216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) to remove theconditional basis of an aliens permanent resident status.Subparagraph (D) added by section 11035 of the 21st Century Department of JusticeAppropriations Authorization Act, Public Law 107-273, dated November 2, 2002.INA 216A [8 U.S.C. 1186b] CONDITIONAL PERMANENT RESIDENT STATUS FORCERTAIN ALIEN ENTREPRENEURS, SPOUSED, AND CHILDREN(a) In general.-(1) Conditional basis for status.-Notwithstanding any other provision of this Act, an alienentrepreneur (as defined in subsection (f)(1)), alien spouse, and alien child (as defined insubsection (f)(2)) shall be considered, at the time of obtaining the status of an alien lawfullyadmitted for permanent residence, to have obtained such status on a conditional basis subject tothe provisions of this section. 2
  3. 3. (2) Notice of requirements.-(A) At time of obtaining permanent residence.-At the time an alien entrepreneur, alien spouse, oralien child obtains permanent resident status on a conditional basis under paragraph (1), theAttorney General shall provide for notice to such an entrepreneur, spouse, or child respecting theprovisions of this section and the requirements of subsection (c)(1) to have the conditional basisof such status removed.(B) At time of required petition.-In addition, the Attorney General shall attempt to provide noticeto such an entrepreneur, spouse, or child, at or about the beginning of the 90-day perioddescribed in subsection (d)(2)(A), of the requirements of subsection (c)(1).(C) Effect of failure to provide notice.-The failure of the Attorney General to provide a noticeunder this paragraph shall not affect the enforcement of the provisions of this section withrespect to such an entrepreneur, spouse, or child.(b) Termination of status if finding that qualifying entrepreneurship improper.-(1) In general.-In the case of an alien entrepreneur with permanent resident status on aconditional basis under subsection (a), if the Attorney General determines, before the secondanniversary of the aliens obtaining the status of lawful admission for permanent residence, that-(A) the investment in 1/ the commercial enterprise was intended solely as a means of evading theimmigration laws of the United States,(B) (i) 1/ the alien did not invest, or was not actively in the process of investing, the requisitecapital; or(ii) 1/ the alien was not sustaining the actions described in clause (i) throughout the period of thealiens residence in the United States; or(C) the alien was otherwise not conforming to the requirements of section 203(b)(5) , then theAttorney General shall so notify the alien involved and, subject to paragraph (2), shall terminatethe permanent resident status of the alien (and the alien spouse and alien child) involved as of thedate of the determination.(2) Hearing in removal proceeding.-Any alien whose permanent resident status is terminatedunder paragraph (1) may request a review of such determination in a proceeding to remove thealien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by apreponderance of the evidence, that a condition described in paragraph (1) is met.(c) Requirements of Timely Petition and Interview for Removal of Condition.-(1) In general.-In order for the conditional basis established under subsection (a) for an alienentrepreneur, alien spouse, or alien child to be removed- 3
  4. 4. (A) the alien entrepreneur must submit to the Attorney General, during the period described insubsection (d)(2), a petition which requests the removal of such conditional basis and whichstates, under penalty of perjury, the facts and information described in subsection (d)(1), and(B) in accordance with subsection (d)(3), the alien entrepreneur must appear for a personalinterview before an officer or employee of the Service respecting the facts and informationdescribed in subsection (d)(1).(2) Termination of permanent resident status for failure to file petition or have personalinterview.-(A) In general.-In the case of an alien with permanent resident status on a conditional basis undersubsection (a), if-(i) no petition is filed with respect to the alien in accordance with the provisions of paragraph(1)(A), or(ii) unless there is good cause shown, the alien entrepreneur fails to appear at the interviewdescribed in paragraph (1)(B) (if required under subsection (d)(3)), the Attorney General shallterminate the permanent resident status of the alien (and the aliens spouse and children if it wasobtained on a conditional basis under this section or section 216) as of the second anniversary ofthe aliens lawful admission for permanent residence.(B) Hearing in removal proceeding.-In any removal proceeding with respect to an alien whosepermanent resident status is terminated under subparagraph (A), the burden of proof shall be onthe alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B).(3) Determination after petition and interview.-(A) In general.-If-(i) a petition is filed in accordance with the provisions of paragraph (1)(A), and(ii) the alien entrepreneur appears at any interview described in paragraph (1)(B), the AttorneyGeneral shall make a determination, within 90 days of the date of the such filing or interview(whichever is later), as to whether the facts and information described in subsection (d)(1) andalleged in the petition are true with respect to the qualifying commercial enterprise.(B) Removal of conditional basis if favorable determination.-If the Attorney General determinesthat such facts and information are true, the Attorney General shall so notify the alien involvedand shall remove the conditional basis of the aliens status effective as of the second anniversaryof the aliens lawful admission for permanent residence. 4
  5. 5. (C) Termination if adverse determination.-If the Attorney General determines that such facts andinformation are not true, the Attorney General shall so notify the alien involved and, subject tosubparagraph (D), shall terminate the permanent resident status of an alien entrepreneur, alienspouse, or alien child as of the date of the determination.(D) Hearing in removal proceeding.-Any alien whose permanent resident status is terminatedunder subparagraph (C) may request a review of such determination in a proceeding to removethe alien. In such proceeding, the burden of proof shall be on the Attorney General to establish,by a preponderance of the evidence, that the facts and information described in subsection (d)(1)and alleged in the petition are not true with respect to the qualifying commercial enterprise.(d) Details of Petition and Interview.-(1) 2/ Contents of petition.--Each petition under subsection (c)(1)(A) shall contain facts andinformation demonstrating that the alien(A)(i) invested, or is actively in the process of investing, the requisite capital; and(ii) sustained the actions described in clause (i) throughout the period of the aliens residence inthe United States; and(B) is otherwise conforming to the requirements of section 203(b)(5) .(2) Period for filing petition.-(A) 90-day period before second anniversary.-Except as provided in subparagraph (B), thepetition under subsection (c)(1)(A) must be filed during the 90-day period before the secondanniversary of the aliens lawful admission for permanent residence.(B) Date petitions for good cause.-Such a petition may be considered if filed after such date, butonly if the alien establishes to the satisfaction of the Attorney General good cause andextenuating circumstances for failure to file the petition during the period described insubparagraph (A).(C) Filing of petitions during removal.-In the case of an alien who is the subject of removalhearings as a result of failure to file a petition on a timely basis in accordance with subparagraph(A), the Attorney General may stay such removal proceedings against an alien pending the filingof the petition under subparagraph (B).(3) Personal interview.-The interview under subsection (c)(1)(B) shall be conducted within 90days after the date of submitting a petition under subsection (c)(1)(A) and at a local office of theService, designated by the Attorney General, which is convenient to the parties involved. TheAttorney General, in the Attorney Generals discretion, may waive the deadline for such aninterview or the requirement for such an interview in such cases as may be appropriate. 5
  6. 6. (e) Treatment of Period for Purposes of Naturalization.-For purposes of title III, in the case of analien who is in the United States as a lawful permanent resident on a conditional basis under thissection, the alien shall be considered to have been admitted as an alien lawfully admitted forpermanent residence and to be in the United States as an alien lawfully admitted to the UnitedStates for permanent residence.(f) Definitions.-In this section:(1) The term "alien entrepreneur" means an alien who obtains the status of an alien lawfullyadmitted for permanent residence (whether on a conditional basis or otherwise) under section203(b)(5) .(2) The term "alien spouse" and the term "alien child" mean an alien who obtains the status of analien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) byvirtue of being the spouse or child, respectively, of an alien entrepreneur.(3) 3/ The term `commercial enterprise includes a limited partnership.*****FOOTNOTES FOR SECTION 216AINA: ACT 216A FN 1FN 1 Section 216A(b)(1)(A) and (B) were amended by section 11036(b)(1)(A) and (B) of the21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273,dated November 2, 2002.(c) Effective Date.--The amendments made by section 11036 shall take effect on the date of theenactment of this Act (Public Law 107-273 dated November 2, 2002) and shall apply to alienshaving any of the following petitions pending on or after the date of the enactment of this Act:(1) 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), with respect to status under section 203(b)(5) ofsuch Act (8 U.S.C. 1153(b)(5)).(2) A petition under section 216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) to remove theconditional basis of an aliens permanent resident status. 6
  7. 7. INA: ACT 216A FN 2FN 2 Section 216A(d)(1) revised by section 11036(b)(2) of the 21st Century Department ofJustice Appropriations Authorization Act, Public Law 107-273, dated November 2, 2002.(c) Effective Date.--The amendments made by section 11036 shall take effect on the date of theenactment of this Act (Public Law 107-273 dated November 2, 2002) and shall apply to alienshaving any of the following petitions pending on or after the date of the enactment of this Act:(1) 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), with respect to status under section 203(b)(5) ofsuch Act (8 U.S.C. 1153(b)(5)).(2) A petition under section 216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) to remove theconditional basis of an aliens permanent resident status.INA: ACT 216A FN 3FN 3 Section 216A(f)(3) added by section 11036(b)(3) of the 21st Century Department ofJustice Appropriations Authorization Act, Public Law 107-273, dated November 2, 2002.(c) Effective Date.--The amendments made by section 11036 shall take effect on the date of theenactment of this Act (Public Law 107-273 dated November 2, 2002) and shall apply to alienshaving any of the following petitions pending on or after the date of the enactment of this Act:(1) 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), with respect to status under section 203(b)(5) ofsuch Act (8 U.S.C. 1153(b)(5)).(2) A petition under section 216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) to remove theconditional basis of an aliens permanent resident status. 7
  8. 8. 8 USC § 1153 NOTE Pilot Immigration ProgramPub. L. 102-395, title VI, Sec. 610, Oct. 6, 1992, 106 Stat. 1874, as amended by Pub. L. 105-119,title I, Sec. 116(a), Nov. 26, 1997, 111 Stat. 2467; Pub. L. 106-396, Sec. 402, Oct. 30, 2000, 114Stat. 1647; Pub. L. 107-273, div. C, title I, Sec. 11037(a), Nov. 2, 2002, 116 Stat.1847; Pub. L.108-156, Sec. 4, Dec. 3, 2003, 117 Stat. 1945, provided that: Notes have been added and yellow-highlighted. Additional emphasis has been added. Exaggerated formatting is intended to have the specific effect of promoting a more effective reading and understanding of this statute. The original statute addressed the Attorney General and by extension, INS. NOW it addresses the Secretary of Homeland Security and by extension, USCIS. The Secretary of State has had a very easy role in this statutory scheme UNTIL NOW. ``(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. [Statutory creation of the Immigrant Investor or Employment Creation “Pilot Program.”] [NOTE: INA § 203(b)(5) is titled as “Employment Creation”.]Such pilot program shall involve aregional center in the United States,designated by the Secretary of Homeland Securityon the basis of a general proposal,for the promotion ofeconomic growth,including increased export sales,improved regional productivity,job creation, or This is a critical “or” whichincreased domestic capital investment. overrules the “and” in the CFR.[Statutory definition of a Regional Center:]“A regional center shall havejurisdiction over a limited geographic area, 8
  9. 9. which shall be described in the proposal andconsistent with the purpose ofconcentrating pooled investmentin defined economic zones.[Statutory framework for application procedures:]The establishment of a regional center may bebased on general predictions, contained in the proposal,concerningthe kinds of commercial enterprises that will receive capital from aliens,the jobs that will be created directly or indirectly as a result of such capital investments, andthe other positive economic 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 for 15 years to include such aliens as areeligible for admission under section 203(b)(5) of the Immigration and Nationality Act [8 U.S.C.1153(b)(5)] and this section, as well as spouses or children which are eligible, under the terms ofthe Immigration and Nationality Act [8 U.S.C. 1101 et seq.], to accompany or follow to join suchaliens.Note that the cross-referenced statutory section changed AFTER this statute was originallywritten and the current accurate replacement section is bracketed. The referenced regulation alsochanged AFTER this statute was originally written but this statute only truly refers to the CFRcite as it existed at the time that the original §610(c) was passed into law (look it up). ``(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)]], andnotwithstanding the requirements of 8 CFR 204.6, the Secretary of Homeland Security shallpermit aliens admitted under the pilot program described in this section toestablish reasonable methodologies for determining the number of jobs created by the pilotprogram, including such jobs which are estimated to have been created indirectlythrough 9
  10. 10. [Laundry list for Economist if one bothers to provide it!]revenues generated from increased exports,improved regional productivity,job creation, or This is a critical “or” whichincreased domestic capital investment overrules the “and” in the CFR.resulting from the pilot program.(The above phrase supports an expanded concept for nexus between the EB-5 money and jobssuch that certain underlying yet critical infrastructure expansion and/or development projects,which have a direct effect on the feasibility and success of subsequent, additional, & associatedRegional Center projects should count for the aggregate creditable job creation tally.) ``(d) In processing petitions under section 204(a)(1)(H) of the Immigration and NationalityAct (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 aliensseeking 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. [With ~95% filing through Regional Centers, this was mootuntil the “shovel-ready” concept came along however, it too has “bugs” to be worked out.][Effective dates:]Pub. L. 107-273, div. C, title I, Sec. 11037(b), Nov. 2, 2002, 116 Stat. 1848, provided that:``The amendments made by this section [amending section 610 of Pub. L. 102-395, set outabove] shall take effect on the date of the enactment of this Act [Nov. 2, 2002] and shallapply to— ``(1) any proposal for a regional center pending before the Attorney General (whether for aninitial decision or on appeal) on or after the date of the enactment of this Act; and [I-924] ``(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 (8U.S.C. 1154(a)(1)(H)) (or any predecessor provision) (or any predecessor provision), withrespect to status under section 203(b)(5) of such Act (8 U.S.C. 153(b)(5)). [I-526] ``(B) A petition under section 216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) toremove the conditional basis of an aliens permanent resident status.] [I-829][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 have becomeeffective on October 6, 1992.] [Retroactivity.] 10

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