I 

111TH CONGRESS 

1ST SESSION H. R. 4259 

To facilitate foreign investment by permanently reauthorizing the EB–5 

regional center program, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 10, 2009 

Mr. POLIS of Colorado introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To facilitate foreign investment by permanently reauthorizing 

the EB–5 regional center program, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Employment Benefit 

5 Act’’. 

6 SEC. 2. PERMANENT REAUTHORIZATION OF EB–5 RE7 GIONAL CENTER PROGRAM; APPLICATION 

8 FEE. 

9 (a) IN GENERAL.—Section 610 of the Departments 

10 of Commerce, Justice, and State, the Judiciary, and ReVerDate Nov 24 2008 19:09 Dec 12, 2009 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4259.IH H4259

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1 lated Agencies Appropriations Act, 1993 (8 U.S.C. 1153 

2 note) is amended— 

3 (1) by striking ‘‘pilot’’ each place it appears; 

4 (2) in subsection (b), by striking ‘‘for 15 

5 years’’; and 

6 (3) by adding at the end the following: 

7 ‘‘(e) In addition to any other fees authorized by law, 

8 the Secretary of Homeland Security shall impose a fee of 

9 $2,500 to apply for designation as a regional center under 

10 this section. Fees collected under this subsection shall be 

11 deposited in the Treasury in accordance with section 

12 286(w) of the Immigration and Nationality Act (8 U.S.C. 

13 1356(w)).’’. 

14 (b) ESTABLISHMENT OF ACCOUNT; USE OF FEES.— 

15 Section 286 of the Immigration and Nationality Act (8 

16 U.S.C. 1356) is amended by adding at the end the fol17 lowing: 

18 ‘‘(w) IMMIGRANT ENTREPRENEUR REGIONAL CEN19 TER ACCOUNT.— 

20 ‘‘(1) IN GENERAL.—There is established in the 

21 general fund of the Treasury a separate account, 

22 which shall be known as the ‘Immigrant Entre23 preneur Regional Center Account’. Notwithstanding 

24 any other provision of law, there shall be deposited 

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1 lected under section 610(b) of the Departments of 

2 Commerce, Justice, and State, the Judiciary, and 

3 Related Agencies Appropriations Act, 1993 (8 

4 U.S.C. 1153 note) and any fees collected in connec5 tion with forms I–526 or I–829. 

6 ‘‘(2) USE OF FEES.—Fees collected under this 

7 section may only be used by the Secretary of Home8 land Security to administer and operate the employ9 ment creation program described in section 

10 203(b)(5).’’. 

11 (c) RULEMAKING.—Not later than 120 days after the 

12 date of the enactment of this Act, the Secretary of Home13 land Security shall prescribe regulations to implement the 

14 amendments made by this section. 

15 (d) EFFECTIVE DATE.—The amendments made by 

16 subsections (a)(3) and (b) shall take effect on the effective 

17 date of the regulations prescribed pursuant to subsection 

18 (c). The remaining amendments made by this section shall 

19 take effect on the date of the enactment of this Act. 

20 SEC. 3. PREMIUM PROCESSING FEE FOR EB–5 IMMIGRANT 

21 INVESTORS. 

22 Section 286(u) of the Immigration and Nationality 

23 Act (8 U.S.C. 1356(u)) is amended by adding at the end 

24 the following: ‘‘In the case of a petition filed under section 

25 204(a)(1)(H) for classification under section 203(b)(5), if 


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1 the petitioner desires a guarantee of a decision on the peti2 tion in 60 days or less, the premium fee under this sub3 section shall be set at $2,500 and shall be deposited as 

4 offsetting receipts in the Immigrant Entrepreneur Re5 gional Center Account established under subsection (w).’’. 

6 SEC. 4. CONCURRENT FILING OF EB–5 PETITIONS AND AP7 PLICATIONS FOR ADJUSTMENT OF STATUS. 

8 Section 245 of the Immigration and Nationality Act 

9 (8 U.S.C. 1255) is amended by adding at the end the fol10 lowing: 

11 ‘‘(n) If, at the time a petition is filed for classification 

12 through a regional center under section 203(b)(5), ap13 proval of the petition would make a visa immediately avail14 able to the alien beneficiary, the alien beneficiary’s adjust15 ment application under this section shall be considered to 

16 be properly filed whether the application is submitted con17 currently with, or subsequent to, the visa petition.’’. 

18 SEC. 5. IMPROVED SET-ASIDE FOR TARGETED EMPLOY19 MENT AREAS. 

20 Section 203(b)(5)(B) of the Immigration and Nation21 ality Act (8 U.S.C. 1153(b)(5)(B)) is amended as follows: 

22 (1) TARGETED EMPLOYMENT AREA DEFINED.— 

23 Clause (ii) is amended to read as follows: 

24 ‘‘(ii) TARGETED EMPLOYMENT AREA

25 DEFINED.—In this paragraph, the term 


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1 ‘targeted employment area’ means, at the 

2 time a petition for classification under this 

3 paragraph is filed, any of the following: 

4 ‘‘(I) A rural area. 

5 ‘‘(II) An area that has experi6 enced high unemployment (of at least 

7 150 percent of the national average 

8 rate). 

9 ‘‘(III) A county that has had a 

10 20 percent or more decrease in popu11 lation since 1970. 

12 ‘‘(IV) An area that is within the 

13 boundaries established for purposes of 

14 a State or Federal economic develop15 ment incentive program, including 

16 areas defined as Enterprise Zones, 

17 Renewal Communities and Empower18 ment Zones. 

19 ‘‘(V) An area designated by a 

20 State agency to which the Governor 

21 has delegated the authority to des22 ignate targeted employment areas 

23 within the State.’’. 


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1 (2) RURAL AREA DEFINED.—Clause (iii) is 

2 amended by striking ‘‘other than an area within a 

3 metropolitan statistical area or’’. 

4 (3) EFFECT OF PRIOR DETERMINATION.—Such 

5 section is amended by adding at the end the fol6 lowing: 

7 ‘‘(iv) EFFECT OF PRIOR DETERMINA8 TION.—In a case in which a geographic 

9 area is determined under clause (ii) to be 

10 a targeted employment area, such deter11 mination shall remain in effect during the 

12 2-year period beginning on the date of the 

13 determination for purposes of any alien 

14 seeking a visa reserved under this subpara15 graph.’’. 

16 SEC. 6. SET-ASIDE OF VISAS FOR REGIONAL CENTER PRO17 GRAM. 

18 Section 610(b) of the Departments of Commerce, 

19 Justice, and State, the Judiciary, and Related Agencies 

20 Appropriations Act, 1993 (8 U.S.C. 1153 note) is amend21 ed by striking ‘‘3,000’’ and inserting ‘‘10,000’’. 

22 SEC. 7. EXTENSION. 

23 Subparagraph (A) of section 216A(d)(2) of the Immi24 gration and Nationality Act (8 U.S.C. 1186b(d)(2)(A)) is 

25 amended by adding the following at the end thereof: ‘‘A 


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1 date specified by the applicant (but not later than the 

2 fourth anniversary) shall be substituted for the second an3 niversary in applying the preceding sentence if the appli4 cant demonstrates that he has attempted to follow his 

5 business model in good faith, provides an explanation for 

6 the delay in filing the petition that is based on cir7 cumstances outside of his control, and demonstrates that 

8 such circumstances will be able to be resolved within the 

9 specified period.’’. 

10 SEC. 8. STUDY. 

11 (a) IN GENERAL.—The Secretary of the Department 

12 of Homeland Security, in appropriate consultation with 

13 the Secretary of Commerce and other interested parties, 

14 shall conduct a study concerning the following: 

15 (1) Current job creation counting methodology 

16 and initial projections under section 203(b)(5) of the 

17 Immigration and Nationality Act (8 U.S.C. 

18 1153(b)(5)). 

19 (2) How best to promote the employment cre20 ation program described in such section overseas to 

21 potential immigrant investors. 

22 (b) REPORT.—The Secretary of Homeland Security 

23 shall submit a report to the Congress not later than 1 

24 year after the date of the enactment of this Act containing 

25 the results of the study conducted under subsection (a). 


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1 SEC. 9. FULL-TIME EQUIVALENTS. 

2 (a) IN GENERAL.—Section 203(b)(5)(A)(ii) of the 

3 Immigration and Nationality Act (8 U.S.C. 

4 1153(b)(5)(A)(ii)) is amended by inserting ‘‘(or full-time 

5 equivalent)’’ after ‘‘full-time’’. 

6 (b) DEFINITION.—Section 203(b)(5)(D) of such Act 

7 (8 U.S.C. 1153(b)(5)(D)) is amended to read as follows: 

8 ‘‘(D) EMPLOYMENT-RELATED DEFINI9 TIONS.— 

10 ‘‘(i) FULL-TIME EMPLOYMENT DE11 FINED.—In this paragraph, the term ‘full12 time employment’ means employment in a 

13 position that requires at least 35 hours of 

14 service per week at any time, regardless of 

15 who fills the position. 

16 ‘‘(ii) FULL-TIME EQUIVALENT EM17 PLOYMENT DEFINED.—In this paragraph, 

18 the term ‘full-time equivalent employment’ 

19 means employment representing the num20 ber of full-time employees that could have 

21 been employed if the reported number of 

22 hours worked by part-time employees had 

23 been worked by full-time employees. This 

24 shall be calculated by dividing the part25 time hours paid by the standard number of 

26 hours for full-time employees.’’. 


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1 SEC. 10. ELIGIBILITY FOR ADJUSTMENT OF STATUS. 

2 Section 245(k) of the Immigration and Nationality 

3 Act (8 U.S.C. 1255(k)) is amended, in the matter pre4 ceding paragraph (1), by striking ‘‘(1), (2), or (3)’’ and 

5 inserting ‘‘(1), (2), (3), or (5)’’. 

6 SEC. 11. EXPANSION OF EB–5 ELIGIBILITY TO INCLUDE 

7 QUALIFIED IMMIGRANTS WHO COMPLETE IN8 VESTMENT AGREEMENTS. 

9 (a) CHANGES TO INVESTMENT CRITERIA.—Section 

10 203(b)(5)(A) of the Immigration and Nationality Act (8 

11 U.S.C. 1153(b)(5)(A)) is amended— 

12 (1) in the matter preceding clause (i), by strik13 ing ‘‘partnership)—’’ and inserting ‘‘partnership) as 

14 follows:’’ 

15 (2) in clause (i)— 

16 (A) by striking ‘‘(i) in which’’ and insert17 ing the following: 

18 ‘‘(i) A new commercial enterprise— 

19 ‘‘(I) in which’’; 

20 (B) by striking ‘‘, and’’ at the end and in21 serting a semicolon; and 

22 (C) by adding at the end the following: 

23 ‘‘(II) with respect to which such 

24 alien has completed an investment 

25 agreement with a qualified venture 

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1 vestment in the enterprise of an 

2 amount not less than the amount 

3 specified in subparagraph (C); or 

4 ‘‘(III) with respect to which such 

5 alien has completed an investment 

6 agreement with 1 or more angel inves7 tors for an investment in the enter8 prise of an amount not less than the 

9 amount specified in subparagraph 

10 (C).’’; and 

11 (3) in clause (ii)— 

12 (A) by striking ‘‘(ii) which will’’ and insert13 ing the following: 

14 ‘‘(ii) In the case of an enterprise— 

15 ‘‘(I) described in clause (i)(I), 

16 which will’’; 

17 (B) by striking the period at the end and 

18 inserting ‘‘; or’’; and 

19 (C) by adding at the end the following: 

20 ‘‘(II) described in subparagraph 

21 (II) or (III) of clause (i), which will 

22 benefit the United States economy 

23 and create full-time employment for 

24 not fewer than 5 United States citi25 zens or aliens lawfully admitted for 


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1 permanent residence or other immi2 grants lawfully authorized to be em3 ployed in the United States (other 

4 than the immigrant and the immi5 grant’s spouse, sons, or daughters).’’. 

6 (b) CHANGES TO CAPITAL REQUIREMENTS.—Section 

7 203(b)(5)(C)(i) of such Act (8 U.S.C. 1153(b)(5)(C)(i)) 

8 is amended by inserting after ‘‘$1,000,000’’ the following: 

9 ‘‘in the case of an enterprise described in subparagraph 

10 (A)(i)(I), $250,000 in the case of an enterprise described 

11 in subparagraph (A)(i)(II), and $100,000 in the case of 

12 an enterprise described in subparagraph (A)(i)(III)’’. 

13 (c) DEFINITIONS.—Section 203(b)(5) of such Act (8 

14 U.S.C. 1153(b)(5)) is amended by adding at the end the 

15 following: 

16 ‘‘(E) QUALIFIED VENTURE CAPITAL OPER17 ATING COMPANY DEFINED.—In this paragraph, 

18 the term ‘qualified venture capital operating 

19 company’ means an entity that— 

20 ‘‘(i) is registered under the Invest21 ment Company Act of 1940 (15 U.S.C. 

22 80a–1 et seq.); or 

23 ‘‘(ii) is an investment company, as de24 fined in subsection (a)(1) of section 3 of 

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1 empt from registration under subsection 

2 (c)(1) or (c)(7) of such section, is not reg3 istered, and— 

4 ‘‘(I) is organized or incorporated, 

5 and domiciled, in the United States, 

6 and the majority ownership of which 

7 is composed of United States citizens 

8 or aliens lawfully admitted to the 

9 United States for permanent resi10 dence; or 

11 ‘‘(II) is owned or controlled by an 

12 entity that is organized or incor13 porated, and domiciled, in the United 

14 States, and the majority ownership of 

15 that entity is composed of United 

16 States citizens or aliens lawfully ad17 mitted to the United States for per18 manent residence. 

19 ‘‘(F) ANGEL INVESTOR DEFINED.—In this 

20 paragraph, the term ‘angel investor’ means— 

21 ‘‘(i) any individual who is a United 

22 States citizen or an alien lawfully admitted 

23 to the United States for permanent resi24 dence, or any entity wholly owned and con25 trolled by United States citizens or aliens 


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1 lawfully admitted to the United States for 

2 permanent residence; or 

3 ‘‘(ii) any entity that has made at least 

4 5 angel investments totaling at least 

5 $250,000 during the 3 years preceding the 

6 completion of an investment agreement de7 scribed in subparagraph (A)(i)(III). 

8 ‘‘(G) ANGEL INVESTMENT.—In this para9 graph, the term ‘angel investment’ means an in10 vestment made in a commercial enterprise that, 

11 prior to such investment, was not owned or con12 trolled by— 

13 ‘‘(i) the investor; 

14 ‘‘(ii) any member of the immediate 

15 family of the investor; or 

16 ‘‘(iii) any entity owned or controlled 

17 by any member of the immediate family of 

18 the investor.’’. 

19 (d) CONFORMING AMENDMENTS TO CONDITIONAL

20 PERMANENT STATUS PROVISIONS.— 

21 (1) TERMINATION OF STATUS IF FINDING THAT

22 QUALIFYING ENTREPRENEURSHIP IMPROPER.—Sec23 tion 216A(b)(1)(B) of such Act (8 U.S.C. 

24 1186b(b)(1)(B)) is amended to read as follows: 

25 ‘‘(B)(i) the alien— 


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1 ‘‘(I) did not invest, or was not actively 

2 in the process of investing, the requisite 

3 capital described in section 

4 203(b)(5)(A)(i)(I), or was not sustaining 

5 such actions throughout the period of the 

6 alien’s residence in the United States; or 

7 ‘‘(II) did not complete an investment 

8 agreement described in subclause (II) or 

9 (III) of section 203(b)(5)(A)(i), or such 

10 agreement was not carried out or was not 

11 actively in the process of being carried out; 

12 or 

13 ‘‘(ii) the commercial enterprise did not— 

14 ‘‘(I) create the minimum number of 

15 jobs required to be created under section 

16 203(b)(5)(A)(ii); or 

17 ‘‘(II) generate a profit and at least 

18 $1,000,000 in revenue; or’’. 

19 (2) CONTENTS OF PETITION.—Section 

20 216A(d)(1) of such Act (8 U.S.C. 1186b(d)(1)) is 

21 amended— 

22 (A) in the matter preceding subparagraph 

23 (A), by striking ‘‘that the alien—’’ and insert24 ing ‘‘that—’’; 


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1 (B) by amending subparagraph (A) to read 

2 as follows: 

3 ‘‘(A)(i) the alien— 

4 ‘‘(I) invested, or was actively in the 

5 process of investing, the requisite capital 

6 described in section 203(b)(5)(A)(i)(I), and 

7 sustained such actions throughout the pe8 riod of the alien’s residence in the United 

9 States; or 

10 ‘‘(II) completed an investment agree11 ment described in subclause (II) or (III) of 

12 section 203(b)(5)(A)(i), and such agree13 ment was carried out or was actively in the 

14 process of being carried out; and 

15 ‘‘(ii) the commercial enterprise— 

16 ‘‘(I) created the minimum number of 

17 jobs required to be created under section 

18 203(b)(5)(A)(ii); or 

19 ‘‘(II) generated a profit and at least 

20 $1,000,000 in revenue; and’’; and 

21 (C) in subparagraph (B), by inserting ‘‘the 

22 alien’’ before ‘‘is otherwise’’. 

Æ 


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