On January 28, 2015, two members of Congress, Jared Polis and Mark Amodei, formally introduced a bipartisan bill to make the EB-5 program permanent. This legislation can, to some extent, be seen as the result of recent industry calls for reform of the EB-5 investment immigration program, elevating these industry demands to the level of a legislative bill. This is indeed significant positive news for the entire U.S. investment immigration sector. If passed, this bill would make the Regional Center program permanent and facilitate the smoother entry of foreign investment into the United States.
“Our nation has always been seen as the most powerful country because we attract the best and brightest talent to help build the American economy,” said Congressman Jared Polis. “The EB-5 program is an effective way to attract innovation and capital to the United States, and this bipartisan proposal will effectively reform and make it permanent, ultimately ensuring that foreign capital and talent can be continuously and smoothly introduced into the U.S. to jointly develop the American economy.”
The main contents of the new EB-5 bill submitted by members of Congress are as follows:
I. Reform of the EB-5 Investment Immigration Program
Amendments to Section 203 of the Immigration and Nationality Act:
(1) Add “investment in an organization similar to a limited partnership” to the types of investments;
(2) The provisions for Targeted Employment Areas (TEAs) have been amended as follows:
1. The number of visas reserved annually for qualified investors in new commercial enterprises is increased from no fewer than 3,000 to no fewer than 5,000;
2. Add a provision after Section 203(b)(5)(B)(iii): To determine whether an area is a Targeted Employment Area, the data sources relied upon by the relevant government departments must be reasonable and include data from the U.S. Census Bureau and the Bureau of Labor Statistics. Once an area is designated as a Targeted Employment Area, this qualification shall be valid for two years from the date of acquisition.
(3) Add provisions regarding “Job-Creating Regional Centers”:
1. Require the Department of Homeland Security (DHS) to consult with the Department of Commerce when determining Regional Center eligibility;
2. When calculating the number of jobs created by a Regional Center, the DHS shall consult with the Department of Commerce to adopt more reasonable calculation methods, and should include indirect jobs generated by exports, increased local productivity, or domestic investment driven by foreign investment;
3. Establish special procedures, such as: 1) A pre-approval process for new enterprises, allowing Regional Centers to obtain pre-approval for a new enterprise before foreign investors file their applications; 2) Allowing applicants to supplement deficiencies in their application materials before a final decision is made on the visa application; 3) Eliminating the need to frequently submit application materials for the same Regional Center;
4. Limitations on processing times:
The processing time for DHS to review visa applications for Regional Center investors and applications for pre-approval of new enterprises shall not exceed 180 days. In cases where additional materials are required, the DHS shall complete the review of the application within 30 days after receiving the materials.
If the submitted materials do not meet the requirements for approval, the DHS shall issue a written notice to the submitter within 30 days, which should include the reasons for the failure to meet requirements and provide an opportunity for correction.
(4) Integrity requirements for Regional Centers:
The DHS will conduct background checks on the leadership and key personnel of Regional Centers and require them to provide relevant information, including fingerprints.
If such personnel have the following circumstances:
1. A criminal record of fraud or civil litigation due to fraud within the past five years;
2. Imprisonment for more than one year due to a criminal offense, or a violation of securities laws and regulations;
3. Have engaged in or are likely to engage in terrorist activities, espionage, human trafficking, human rights violations, money laundering, or violations of WorldWay regulations, then such personnel shall not hold any leadership or key positions in any Regional Center. If a Regional Center is found to be in violation of this provision or fails to provide corresponding information, the DHS has the right to terminate the Regional Center's qualification, but must provide avenues for reconsideration and appeal in accordance with relevant U.S. laws.
In addition, the DHS, in conjunction with the U.S. Securities and Exchange Commission (SEC), shall establish review standards for securities-related materials in visa applications or applications to remove conditions on permanent residence.
II. EB-5 Visa Reform:
(1) Amend Section 201(b)(1) of the Immigration and Nationality Act to include the principal applicant's spouse or children in the category of applicants not subject to direct numerical limitations.
(2) Establish age standards for investors' children: If an investor's child submits an application before the age of 21, as long as the child is unmarried and submits an application for a permanent green card within one year after the conditions on their temporary green card are removed, the child shall not be considered to have aged out.
(3) Allow concurrent filing: When an applicant has filed an application in accordance with the requirements of Section 203(b)(5) of the Immigration and Nationality Act, if this application would allow the foreign investor's beneficiary to immediately obtain a visa, the beneficiary should be able to concurrently file an application for adjustment of status.
Worldway immigration experts point out: We should always maintain a rational, dialectical, and calm attitude toward the industry's calls and actions regarding EB-5 reform. As for this bill, it is indeed a rare and systematic proposal for a comprehensive set of EB-5 reforms, and it further advances the process of EB-5 reform from a legislative standpoint. However, some of the contents of this bill may be too idealistic or counterproductive, which could ultimately significantly diminish its effectiveness. Specifically, you may refer to another analysis article on the Worldway official website, “Responding to Constant Changes with Immutability: A Calm Look at the Major Positive Proposal for EB-5 Reform”, article link: http://www.worldwayhk.com/usa/1872.html
