II 114th CONGRESS 2d Session S. 3510 IN THE SENATE OF THE UNITED STATES December 6, 2016 Mr. Flake introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To facilitate the creation of American jobs by immigrant entrepreneurs.

1. Short title This Act may be cited as the Attracting and Retaining Entrepreneurs Act . 2. Entrepreneur nonimmigrant visas (a) Entrepreneur nonimmigrant category Section 101(a)(15) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15) ) is amended— (1) in subparagraph (U)(iii), by striking or at the end; (2) in subparagraph (V)(ii)(II), by striking the period at the end and inserting ; or ; and (3) by adding at the end the following: (W) in accordance with the definitions set forth in section 203(b)(6)(A), a qualified entrepreneur who has demonstrated that, during the 3-year period ending on the date on which the alien filed an initial petition for nonimmigrant status described in this subparagraph— (i) a qualified venture capitalist, a qualified angel investor, a qualified government entity, a qualified community development financial institution, qualified startup accelerator, or such other type of entity or investors, as determined by the Secretary, or any combination of such entities or investors, has made a qualified investment or combination of qualified investments of not less than $100,000 in the alien’s United States business entity; or (ii) the alien’s United States business entity— (I) has created not fewer than 3 qualified jobs; and (II) during the 2-year period ending on such filing date has generated not less than $250,000 in annual revenue arising from business conducted in the United States. . (b) Admission of entrepreneur nonimmigrants Section 214 of the Immigration and Nationality Act ( 8 U.S.C. 1184 ) is amended— (1) in subsection (b), by striking (other than and all that follows through such section) and inserting (other than a nonimmigrant described in subparagraph (H)(i)(b), (H)(i)(c), (L), (V), or (W) of section 101(a)(15)) ; and (2) by adding at the end the following: (s) Entrepreneur nonimmigrant visas (1) Definitions The definitions set forth in section 203(b)(6)(A) shall apply to this subsection. (2) Initial period of authorized admission The initial period of authorized status as a nonimmigrant described in section 101(a)(15)(W) shall be 3 years. (3) Renewal of admission Subject to paragraph (4), the period of authorized nonimmigrant status described in paragraph (2) may be renewed for additional 3-year periods if— (A) during the most recent 3-year period in which the alien was granted such status, the alien’s United States business entity created not fewer than 3 qualified jobs; and (B) (i) during such 3-year period, a qualified venture capitalist, a qualified angel investor, a qualified government entity, a qualified community development financial institution, qualified startup accelerator, or such other type of entity or investors, as determined by the Secretary, or any combination of such entities or investors, has made a qualified investment or combination of qualified investments of not less than $250,000 to the alien’s United States business entity; or (ii) during the 2-year period ending on the date on which the alien petitioned for an extension, the alien’s United States business entity has generated not less than $250,000 in annual revenue arising from business conducted within the United States. (4) Waiver of renewal requirements The Secretary may renew an alien’s status as a nonimmigrant described in section 101(a)(15)(W) for not more than 1 year at a time, up to an aggregate of 2 years, if the alien— (A) does not meet the criteria under paragraph (3); and (B) meets the criteria established by the Secretary, in consultation with the Secretary of Commerce, for approving renewals under this subsection, which shall include a determination that— (i) the alien has made substantial progress in meeting such criteria; and (ii) such renewal is economically beneficial to the United States. (5) Attestation The Secretary shall require an alien seeking status as a nonimmigrant described in section 101(a)(15)(W) to attest, under penalty of perjury, that the alien meets the application criteria. (6) W–1 visa fee In addition to processing fees, the Secretary shall collect a $1,000 fee from each nonimmigrant admitted under section 101(a)(15)(W). . 3. Entrepreneur immigrant visas Section 203(b) of the Immigration and Nationality Act ( 8 U.S.C. 1153(b) ) is amended— (1) by redesignating paragraph (6) as paragraph (7); and (2) by inserting after paragraph (5) the following: (6) Entrepreneur immigrants (A) Definitions In this paragraph and in sections 101(a)(15)(W) and 214(s): (i) Qualified angel investor The term qualified angel investor means an individual or organized group of individuals investing directly or through a legal entity— (I) each of whom is an accredited investor (as defined in section 230.501(a) of title 17, Code of Federal Regulations, or any similar successor regulation) investing the funds owned by such individual or organized group in a qualified entrepreneur’s United States business entity; (II) (aa) if an individual, is a citizen of the United States or an alien lawfully admitted for permanent residence; or (bb) if an organized group or legal entity, a majority of the individuals investing through such group or entity are citizens of the United States or aliens lawfully admitted for permanent residence; and (III) each of whom in the previous 3 years has made qualified investments totaling not less than $50,000 (or such higher amount determined appropriate by the Secretary) in United States business entities that are less than 5 years old. (ii) Qualified community development financial institution The term qualified community development financial institution means an entity that has been certified by the CDFI Fund under section 1805.201 45D(c) of title 12, Code of Federal Regulations, or any similar successor regulation. (iii) Qualified entrepreneur The term qualified entrepreneur means an individual who— (I) has a significant ownership interest, which need not constitute a majority interest, in a United States business entity; (II) is employed in a senior executive position at such entity; (III) submits a business plan to U.S. Citizenship and Immigration Services; and (IV) had a substantial role in the founding or early-stage growth and development of such entity. (iv) Qualified government entity The term qualified government entity means an agency or instrumentality of the United States or of a State, local, or tribal government. (v) Qualified investment The term qualified investment — (I) means an investment in a qualified entrepreneur’s United States business entity that is— (aa) a purchase from such entity of equity or convertible debt issued by such entity; (bb) a secured loan; (cc) a convertible debt note; (dd) a public securities offering; (ee) a research and development award from a qualified government entity to the United States business entity; (ff) another investment determined appropriate by the Secretary; or (gg) a combination of any of the investments described in items (aa) through (ff); and (II) does not include an investment from— (aa) such qualified entrepreneur; (bb) the parents, spouse, son, or daughter of such qualified entrepreneur; or (cc) any corporation, company, association, firm, partnership, society, or joint stock company over which such qualified entrepreneur has a substantial ownership interest. (vi) Qualified job The term qualified job means a full-time position at a United States business entity owned by a qualified entrepreneur that— (I) is located in the United States; (II) has been filled for at least 2 years by a United States citizen or legal permanent resident who is not the qualified entrepreneur or the spouse, son, or daughter of the qualified entrepreneur; and (III) is compensated at a wage level that is commensurate with similarly situated employees in comparable positions in the metropolitan statistical area of the employment. (vii) Qualified startup accelerator The term qualified startup accelerator means a corporation, company, association, firm, partnership, society, or joint stock company that— (I) is organized under the laws of the United States or of any State and conducts business in the United States; (II) in the ordinary course of business, provides a program of training, mentorship, and logistical support to assist entrepreneurs in growing their businesses; (III) is managed by individuals, the majority of whom are citizens of the United States or aliens lawfully admitted for permanent residence; (IV) (aa) regularly acquires an equity interest in companies that participate in its programs in which the majority of the capital so invested is committed from individuals who are United States citizens or aliens lawfully admitted for permanent residence, or from entities organized under the laws of the United States or any State; or (bb) is an entity that has received not less than $250,000 in funding from a qualified government entity or entities during the previous 5 years and regularly awards grants to companies that participate in its programs (in which case, such grant shall be treated as a qualified investment for purposes of clause (iv)); (V) during the previous 5 years, has acquired an equity interest in, or, in the case of an entity described in subclause (IV)(bb), regularly made grants to, not fewer than 10 United States business entities that— (aa) have participated in its programs; and (bb) (AA) have each secured at least $100,000 in initial investments; or (BB) during any 2-year period following the date of such acquisition, have generated not less than $500,000 in aggregate annual revenue within the United States; (VI) has its primary location in the United States; and (VII) satisfies such other criteria as the Secretary may establish. (viii) Qualified venture capitalist The term qualified venture capitalist means an entity that— (I) (aa) is a venture capital operating company (as defined in section 2510.3–101(d) of title 29, Code of Federal Regulations or any successor to such regulation); or (bb) has management rights, as defined in, and to the extent required by, such section 2510.3–101(d) or successor regulation, in its portfolio companies; (II) has capital commitments of not less than $10,000,000; and (III) has an investment adviser that— (aa) is registered under section 203 of the Investment Advisers Act of 1940 ( 15 U.S.C. 80b–3 ); (bb) has its primary office location in the United States; (cc) is directly or indirectly owned by individuals, the majority of whom are citizens of the United States or aliens lawfully admitted for permanent residence in the United States; (dd) has been advising such entity or other similar funds or entities for at least 2 years; and (ee) has advised such entity or a similar fund or entity with respect to at least 2 investments of not less than $500,000 made by such entity or similar fund or entity during each of the most recent 2 years. (ix) Secretary Except as otherwise specifically provided, the term Secretary means the Secretary of Homeland Security. (x) Senior executive position The term senior executive position includes the position of chief executive officer, chief technology officer, and chief operating officer. (xi) United States business entity The term United States business entity means any corporation, company, association, firm, partnership, society, or joint stock company that is organized under the laws of the United States or any State and that conducts business in the United States that is not— (I) a private fund (as defined in 202(a) of the Investment Advisers Act of 1940 ( 15 U.S.C. 80b–2 )); (II) a commodity pool (as defined in section 1a of the Commodity Exchange Act ( 7 U.S.C. 1a )); (III) an investment company (as defined in section 3 of the Investment Company Act of 1940 ( 15 U.S.C. 80a–3 ); or (IV) an issuer that would be an investment company without an exemption provided in— (aa) section 3(c) of the Investment Company Act of 1940 ( 15 U.S.C. 80a–3(c) ); or (bb) section 270.3a–7 of title 17, Code of Federal Regulations, or any similar successor regulation. (B) In general Not more than 10,000 visas shall be available during each fiscal year for qualified immigrants seeking to enter the United States for the purpose of creating new businesses, as described in this paragraph. (C) Eligibility An alien who is a qualified entrepreneur is eligible for a visa under this paragraph if— (i) (I) the alien maintained valid nonimmigrant status in the United States for at least 2 years; (II) during the 3-year period ending on the date the alien files an initial petition for such status under this section— (aa) (AA) the alien has a significant ownership in a United States business entity that has created not fewer than 5 qualified jobs; and (BB) a qualified venture capitalist, a qualified angel investor, a qualified government entity, a qualified community development financial institution, qualified startup accelerator, or such other entity or type of investors, as determined by the Secretary, or any combination of such entities or investors, has devoted a qualified investment or combination of qualified investments of not less than $500,000 to the alien’s United States business entity; or (bb) (AA) the alien has a significant ownership interest in a United States business entity that has created not fewer than 5 qualified jobs; and (BB) during the 2-year period ending on such petition date, has generated not less than $500,000 in annual revenue within the United States; and (III) not more than 2 other aliens have received nonimmigrant status under this section on the basis of an alien's ownership of such United States business entity; or (ii) (I) the alien maintained valid nonimmigrant status in the United States for at least 3 years before the date on which the alien filed an application for such status; (II) the alien holds an advanced degree in a field of science, technology, engineering, or mathematics that has been approved by the Secretary; (III) during the 3-year period ending on the date on which the alien files an initial petition for such status under this section— (aa) (AA) the alien has a significant ownership interest in a United States business entity that has created not fewer than 4 qualified jobs; and (BB) a qualified venture capitalist, a qualified angel investor, a qualified government entity, a qualified community development financial institution, qualified startup accelerator, or such other entity or type of investors, as determined by the Secretary, or any combination of such entities or investors, has devoted a qualified investment or combination of qualified investments of not less than $500,000 in total to the alien's United States business entity; or (bb) (AA) the alien has a significant ownership interest in a United States business entity that has created not fewer than 3 qualified jobs; and (BB) during the 2-year period ending on such petition date, the entity has generated not less than $500,000 in annual revenue within the United States; and (IV) not more than 3 other aliens have received nonimmigrant status under this paragraph on the basis of an alien’s ownership of such United States business entity. (D) New business plan requirement (i) In general A qualified entrepreneur shall submit a new business plan to U.S. Citizenship and Immigration Services if there has been a material change to the business plan referred to in subparagraph (A)(ii)(III). (ii) Presumption There shall be a presumption in favor of approval for any new business plan submitted pursuant to clause (i). (E) Attestation The Secretary may require an alien seeking a visa under this paragraph to attest, under penalties of perjury, to the alien’s qualifications. . 4. Administration and oversight (a) Rulemaking (1) In general Not later than 16 months after the date of the enactment of this Act, the Secretary of Homeland Security, in consultation with the Secretary of Commerce, the Administrator of the Small Business Administration, and heads of other relevant Federal agencies and departments, shall promulgate regulations— (A) to carry out the amendments made by this Act; and (B) to ensure that such amendments are implemented in a manner that is consistent with— (i) the protection of national security; and (ii) the promotion of United States economic growth, job creation, and competitiveness. (2) Modification of dollar amounts (A) In general The Secretary of Homeland Security may prescribe regulations that increase or decrease any dollar amount specified in— (i) section 101(a)(15)(W) of the Immigration and Nationality Act, as added by section 2(a); (ii) section 214(s) of such Act, as added by section 2(b); or (iii) section 203(b)(6) of such Act, as added by section 3. (B) Automatic adjustment Unless a dollar amount referred to in subparagraph (A) relating to a petition for a nonimmigrant visa under section 101(a)(15)(W) of the Immigration and Nationality Act or an immigrant visa under section 203(b)(6) of such Act is adjusted by the Secretary of Homeland Security pursuant to such subparagraph, such dollar amount shall automatically adjust— (i) on January 1, 2021, by the percentage change in the Consumer Price Index (CPI–U) during fiscal year 2020; and (ii) on every fifth subsequent January 1 by the percentage change in the CPI–U during the previous 5 fiscal years. (b) Other authority The Secretary of Homeland Security, in the Secretary’s unreviewable discretion, may deny or revoke the approval of a petition seeking an immigrant visa under section 203(b)(6) of the Immigration and Nationality Act, as added by section 3, or any other petition, application, or benefit based upon the previous or concurrent filing or approval of a petition for classification of an alien under such section, if the Secretary determines that the approval or continuation of such petition, application, or benefit is contrary to the national interest of the United States or for other good cause. (c) Reports Once every 3 years, the Secretary of Homeland Security shall submit a report to Congress that includes— (1) a description of the implementation of this Act and the amendments made by this Act; (2) the number and percentage of entrepreneurs who have met the thresholds for nonimmigrant renewal and adjustment to green card status under the amendments made by this Act; (3) an analysis of the program’s economic impact, including— (A) job and revenue creation; (B) increased investments; and (C) growth within business sectors and regions; (4) a description and breakdown of the types of businesses that have been created by entrepreneurs granted nonimmigrant or immigrant status; (5) for each report other than the Secretary’s initial report, a description of the percentage of the businesses initially created by the entrepreneurs granted immigrant and nonimmigrant status under this Act and the amendments made by this Act, that are still in operation; and (6) any recommendations for improving the program established under this Act and the amendments made by this Act.