Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

8 USC 1153 Note pilot immigration program revised 2 22-2012

956 views

Published on

EB-5 Regional Center statute.

  • Be the first to comment

  • Be the first to like this

8 USC 1153 Note pilot immigration program revised 2 22-2012

  1. 1. 8 USC § 1153 NOTE Pilot Immigration ProgramPub. L. 102-395, title VI, Sec. 610, Oct. 6, 1992, 106 Stat. 1874, as amended byPub. L. 105-119, title I, Sec. 116(a), Nov. 26, 1997, 111 Stat. 2467; Pub. L. 106-396, Sec. 402, Oct. 30, 2000, 114 Stat. 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, 117Stat. 1945, provided that: Notes and additional emphasis has been added. Exaggerated formatting, breaks, and spacing 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 Immigrationand Nationality Act (8 U.S.C. 1153(b)(5)), the Secretary of State, together with theSecretary of Homeland Security, shall set aside visas for a pilot program toimplement the provisions of suchsection.[Statutory creation of the Immigrant Investor or Employment Creation “PilotProgram.”][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 of  economic growth,  including increased export sales,  improved regional productivity, This is a critical “or” which supersedes  job creation, or the “and” in the INS/USCIS regulation.  increased domestic capital investment. Page 1 of 4
  2. 2. [Statutory definition of a Regional Center:] “A regional center shall have  jurisdiction over  a limited geographic area,  which shall be  described in the proposal  and  consistent with the purpose of  concentrating pooled investment  in defined economic zones.” [Statutory framework for application procedures:]The establishment of a regional center may be based on  general predictions, contained in the proposal,  concerning  the 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, and  the other positive economic effects such capital investments will have.”``(b) For purposes of the pilot program established in subsection (a), beginning onOctober 1, 1992, but no later than October 1, 1993, the Secretary of State, togetherwith the Secretary of Homeland Security, shall set aside 3,000 visas annually for15 years to include such aliens as are eligible for admission under section203(b)(5) of the Immigration and Nationality Act [8 U.S.C. 1153(b)(5)] and thissection, as well as spouses or children which are eligible, under the terms of theImmigration and Nationality Act [8 U.S.C. 1101 et seq.], to accompany or followto join such aliens. Note that the cross-referenced statutory section changed AFTER this statute was originally written and the current accurate replacement section is bracketed. The referenced regulation also changed AFTER this statute was originally written but this statute only truly refers to the CFR cite as it existed at the time that the original §610(c) was passed into law (look it up). Page 2 of 4
  3. 3. ``(c) In determining compliance with section 203(b)(5)(A)(iii)[(ii)] of theImmigration and Nationality Act [8 U.S.C. 1153(b)(5)(A)(iii)[(ii)]], andnotwithstanding the requirements of 8 CFR 204.6, the Secretary of HomelandSecurity shall permit aliens admitted under the pilot program described in thissection to  establish reasonable methodologies for  determining the number of jobs created by the pilot program, including  such jobs which are estimated to have been created indirectly  through [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” which supersedes  increased domestic capital investment the “and” in the INS/USCIS regulation.  resulting from the pilot program.” Note: This last point above supports an expanded concept for nexus between the EB-5 money and jobs such that certain underlying yet critical infrastructure expansion and/or development projects, which have a direct effect on the feasibility and success of subsequent, additional, & associated Regional Center projects should count for the aggregate creditable job creation tally. The “Pilot Program” has only been defined thus far as it directly relates the establishment/designation of a “Regional Center” however, it was always also intended to have “other positive economic effects” on a regional or national level. There is a fine line between a clear nexus and an exaggerated claim to the indirect jobs from “subsequent, additional, & associated projects”.``(d) In processing petitions under section 204(a)(1)(H) of the Immigration andNationality 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 givepriority to petitions filed by aliens seeking admission under the pilot programdescribed in this section. Notwithstanding section 203(e) of such Act (8 U.S.C.1153(e)), immigrant visas made available under such section 203(b)(5) may beissued to such aliens in an order that takes into account any priority accorded under Page 3 of 4
  4. 4. the preceding sentence. [With ~95% filing through Regional Centers, this wasmoot until the “shovel-ready” concept came along however, it too has “bugs” tobe 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 out above] 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 an initial 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 (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)). [I-526] ``(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.] [I-829][Section 116(b) of Pub. L. 105-119 provided that: ``The amendment made bysubsection (a)(2) [amending section 610 of Pub. L. 102-395, set out above] shall bedeemed to have become effective on October 6, 1992.] [Retroactivity.] Page 4 of 4

×