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Part 5: Proposed Investor Visa Programs

This is the final part in a five-part series of short papers on the EB-5 Immigrant Investor Visa program. If you missed parts 1-4, you can find them here.

Because significant bipartisan support exists for the EB-5 Immigrant Investor Program, various legislative proposals have been introduced to strengthen it. These bills vary in their approach to take steps to address weaknesses, enhance federal government oversight and improve program integrity. Below is a description of some of the recent legislative proposals related to investor visa programs.

  1. Proposed Investor Visa Programs in the 2013 Comprehensive Immigration Reform Bill

The bipartisan comprehensive immigration bill that passed the Senate in 2013 before failing to receive a vote in the House of Representatives, The Border Security, Economic Opportunity, and Immigration Modernization Act (S.744), contained significant changes to the EB-5 program, including its permanent authorization.

The bill would have made several modifications to the program to attract additional foreign investment and create jobs. It would have periodically increased the minimum required investment, tying the minimum investment amount to the consumer price index, and would have exempted spouses and children of investors from the 10,000-visa cap. It also would have required regional centers to submit detailed annual reports to USCIS.

In addition to changes to the EB-5 program, S.744 also would have created two new investor visas, the X visa and the EB-6 visa. The proposed X visa would have been a temporary three-year nonimmigrant classification aimed at entrepreneurs whose businesses (1) attracted $100,000 or more in venture capital or investment or (2) created at least three jobs and generated $250,000 in annual revenue during two years leading up to the application.

The proposed EB-6 visa would have allowed qualifying investors to obtain permanent residency as part of an effort to promote startup businesses. To qualify for an EB-6 visa, an entrepreneur would have been asked to demonstrate that he or she were employed in a senior executive position of the U.S. business entity, played a major role in the launch of the business and maintained significant ownership in the company. Under the proposed EB-6 visa, the startup business would have been required either (1) to have created at least five new jobs while receiving at least $500,000 in venture capital or investment in the three years before the application, or (2) to have created five or more jobs while generating $750,000 in annual revenues during the two-year period before applying for the visa.

  1. Proposed Investor Visas Reforms in 2015

While the reforms in the bipartisan Senate bill died after the House failed to take up immigration reform in the 113thCongress, additional standalone reforms have been proposed in the current Congress. On January 28, 2015, Reps. Jared Polis (D-Colorado) and Mark Amodei (R-Nevada) introduced The American Entrepreneurship & Investment Act of 2015 (H.R.616). This bipartisan bill, previously introduced in 2014 as H.R.4178, would permanently authorize the Regional Center Program, which is set to expire at the end of September.

The bill addresses concerns raised by various entrepreneur groups and stakeholders, including by creating new designations for Targeted Employment Areas (TEAs) and addressing USCIS and industry transparency. The bill would clarify the standard of deference to be afforded to USCIS’s prior rulings in adjudicating petitions filed by immigrant investors, require that “USCIS defer to its own prior rulings, except in cases of ‘material change, fraud or legal deficiency’” and aim to improve understanding of the agency’s expectations and requirements. Additionally, the bill would streamline USCIS’s processing times, requiring the agency to rule on proposals within 180 days after filing, and provide new standards to regional centers to protect against fraud. H.R.616 also would attempt to satisfy demand for the visa by not counting family members of immigrant investors against the annual visa cap.

In June 2015, Sens. Patrick Leahy (D-Vermont) and Charles Grassley (R-Iowa) introduced the American Job Creation and Investment Promotion Reform Act of 2015 (S.1501 ). S. 1501 would extend and reform the EB-5 program while making a number of significant changes to it, and it would reauthorize the EB-5 Regional Center Program for five years. The bill would provide additional resources to the Department of Homeland Security (DHS) to administer the program, which would reduce processing times and combat fraud. S.1501 also would raise the investment threshold and change how TEAs are defined, driving EB-5 investment toward rural areas and away from urban areas. The Senate proposal also includes changes in how DHS tallies job creation numbers, making it more difficult for projects to reach the job creation threshold.

In July 2015, Reps. Zoe Lofgren (D-California) and Luis Gutierrez (D-Illinois) introduced the Entrepreneurial Businesses Creating Jobs Act of 2015 (the EB-JOB Act of 2015, H.R.3370), which would authorize and reform the current EB-5 visa program. The EB-JOB Act of 2015 would permanently authorize the EB-5 Regional Center Program, create a new green card category for entrepreneurs establishing new startup businesses, reform TEA provisions to incentivize additional investment in rural areas and areas with high unemployment, and provide for additional reforms and oversight.

The Lofgren-Gutierrez bill would also permanently authorize an expiring program that streamlines the process for foreign medical doctors seeking to work medically underserved areas and would reauthorize for five years the expiring E-Verify and Special Immigration Nonminister Religious Worker programs.

Rep. Lofgren published a section-by-section summary of the legislation.

The EB-5 Investment Coalition has released a section-by-section summary of S.1501, which includes additional analysis of proposed changes to the program. The American Immigration Lawyers Association has released a comparison of House bills that would change the program.

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