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Siskind Summary Greg Siskind (firstname.lastname@example.org) Summary of Amendments from 5-16-2013 Hirono 4 Adds new section to Title IV (number not determined yet). Visa Waiver Program modified. Section 217(c) to allow Hong Kong eligibility for participation. Hong Kong would still need to qualify for VWP eligibility, but this allows the country to participate for the first time since it has previously not been considered an eligible country. Leahy 2 This is a major EB-5 reform bill coming in at 31 pages. There’s a technical change first. The elimination of the sunset of the EB-5 program in Section 2319 is deleted and moved to a new Section 4804 entitled “Permanent Authorization of EB-5 Regional Center Program. At the end of the EB-5 language in INA Section 203(b)(5), a major new section is added regarding EB-5 regional centers. Regional Centers must promote economic grown including increased export sales, improved regional productivity, job creation or increased domestic capital investment. Regional centers have jurisdiction over a defined geographic area. Approval may be based on - The kinds of commercial investments that will receive investments - The jobs will be created directly or indirectly as a result of such investments - Other positive effects such investments will have Regarding job creation documentation for regional centers, DHS shall permit applicant immigrants to establish reasonable methodologies to document job creation (including jobs created indirectly) through revenues generated from increased exports, improved regional productivity, job creation; or increased domestic capital investment resulting from the program, including jobs created outside the geographic boundary of the regional center as a result of the immigrant’s investment in regional center-affiliated commercial enterprises. EB-5 immigrants would be able to satisfy 10 jobs created requirement through showing indirect job creation. [The language is a little unclear here]. Allows enterprises affiliated with regional centers to pre-submit to USCIS business plans, investment documents and credible economic analyses for specific projects. USCIS can pre-approve the projects and charge a fee for this service. Pre-approval means petitions adjudicated for that project should be approved unless there is evidence of fraud, misrepresentation, criminal misuse, a threat to national security or other evidence affecting program eligibility that was not disclosed by the petitioner during the preapproval process. Premium processing will be available for people applying based on pre-approved projects. Oversight of regional centers. RCs shall annually submit to DHS financial statements including an accounting of all foreign investor money invested through the RC and for each project, - an accounting of the aggregate capital invested through the RC or affiliated enterprises by EB-5 investors, - a description of how the funds are being used to execute the business plan - evidence that 100% of investor funds have been dedicated to the project - detailed evidence of the progress made toward completion of the project - an accounting of the aggregate direct and indirect jobs created or preserved - a certification by the RC that such statements are accurate New sanctions are created for RCs providing insufficient financial statements. Graduated sanctions. First, fines of up to 5% of the capital invested by immigrants. Then temporary suspension from participating in the program. Then permanent bar for one or more individuals affiliated with the RC. Then termination of the RC status. No key individuals associated with RCs if DHS finds they have been found liable within the previous five years of any criminal or civil violations relating to fraud or deceit or at any time with a criminal conviction of at least one year or a criminal/civil violation of any law or regulation in connection with the sale of a security. DHS also can bar individuals if they know have reasonable cause to believe they’re engaged in illicit trafficking of controlled substances, activities relating to espionage or sabotage, activities related to money laundering, terrorist activities, human trafficking or human rights offenses, or violations of any laws on foreign financial transactions or foreign asset control. Background checks via the submission of biometric information. New section on RC termination. DHS has unreviewable discretion If they have bad actors working there based on section above, if any persons involved with the RC have failed to provide an attestation or information requested by DHS, or the RC or any persons associated with the RC is engaged in fraud, criminal use or threats to national security. RC Compliance with Securities laws. All RC designation applications and amendment applications must have a certification of compliance with securities laws. Must also certify on an annual basis. DHS given unreviewable discretion to suspend or revoke RC designation if there are security law violations or false statements. Provides a process for USCIS to revoke or deny an RC approval when rules are violated as well as to deny I-829 petitions to remove conditions on permanent residency status. USCIS should consult with the Department of Commerce in determining RC designations and on the meeting of job creation requirements. The provisions in this new section are effective upon enactment and will apply to pending RC designation applications. Applies to any RCs pending on the date of enactment. For RCs approved before the date of enactment the effective date will be on or after a delayed effective date that is 1 year after such date of enactment with respect to any person involved in the RC after the delayed effective date. New Section 4805. Conditional Permanent Resident Status for Employment-Based Immigrants, Spouses and Children. Amends INA Section 216A on removal of conditions on green card. Spouses or kids shall not be required to file separate I-829 petition if the principal applicant includes the family members in his or her I-829. If the dependent obtains permanent residence after the date when the principal files an I-829, the conditional basis of the dependent shall be removed upon approval of the principal’s I-829 and the dependent’s permanent residency will be unconditional when it is approved. Provides child status protection to I-526 and I-829 applicants. Will be considered under 21 if application pends past their 21st birthdays. Higher fees for I-829s if multiple family members included in same petition. New exception in removal of condition cases. New special rule for alien investors in a regional center. Exception to removal of condition requirements if the alien invested in a regional center and files financial statements filed by the RC in which the person invested. Gives authority to DHS to revoke conditional resident status if there is fraud, misrepresentation, criminal misuse, threats to national security. New Section 4806. EB-5 Visa Reforms. Removes dependents from EB-5 cap. Targeted Employment Areas. At least 5,000 EB-5s reserved for TEAs. TEA designations shall be valid for five years and may be renewed for additional 5-year periods if the area continues to meet the definition of a high unemployment or poverty area. People who invest in an area that has the status and then loses the status won’t have to increase investment as a result. Beginning 1/1/2016, the investment amounts required for EB-5 will adjust based on changes in the Consumer Price Index. A new adjustment will happen every five years thereafter. New definition of “full-time employment”. Includes intermittent or seasonal employment opportunities and construction jobs using a “full-time equivalents” determination. “Capital” defined to include all real, personal or mixed assets, whether tangible or intangible, owned or controlled by the investor, or held in trust for the benefit of the investor, to which the investor has unrestricted access, which shall be valued at the fair market value in US dollars at the time it is invested. “full-time employment” requires at least 35 hours of service per week. “high unemployment and poverty area” means an area consisting of a census tract or contiguous census tracts that has an unemployment rate at least 150% of the national rate and includes at least one tract with 20% of its residents living below the federal poverty level OR is in a federal enterprise zone. “rural area” means any area outside a metropolitan statistical area or within the outer boundary of any town with more than 20,000 people OR any town with fewer than 20,000 people in a state with fewer than 1,500,000 people. “targeted employment area” means a rural area or a high unemployment and poverty area. This new definitions section applies to any applications filed on the date that is one year after the date of enactment. New INA section 203(h)(5) on determining the age of children of alien investors. Children admitted for permanent residence on a conditional basis under EB-5 whose conditional status is terminated because the conditional residency application was not approved, shall continue to be considered a child if the alien remains unmarried and the principal alien files a new petition within a year of the termination of conditional status. Can use this provision only one time. DHS may delegate responsibility for determinations of I-526 and I-829 applications to the Department of Commerce including the job creation parts. Application fees will be used to reimburse the Commerce Department. Permits concurrent filing of I-526 and adjustment of status petitions if a visa number is available. Schumer 5 with additional Schumer change Amends Section 4703 dealing with W visas. Defines “initial W nonimmigrant” as one seeking initial admission to the US to begin employment for a registered employer in a registered position. DHS shall develop and maintain a registry of approved registered positions for W status and will make the registry available on a web site maintained by DHS and linked by state workforce agencies. All approved registered positions for which a permit has been issued will be included in the registry and will indicate if the position is filled or unfilled. If a W visa holder’s employment ends, DHS shall ensure that the registry indicates that the registered position is unfilled for a period of 10 calendar days unless the position gets filled by a US worker. W vacancies created by the termination of employment may be filled by hiring a US worker or, after ten days of positing, by hiring a W nonimmigrant or a certified alien. Allows for certain positions that are re-filled after a W nonimmigrant leaves and which are filled by another W nonimmigrant not to count against the W cap. Allows use of safety valve only if employers have tried to recruit available W nonimmigrants who are not initial W nonimmigrants. 3, rather than 7, recruiting steps must be taken for these individuals. For W nonimmigrants who are not initial Ws, they can be paid the regular prevailing wage for safety valve applications and these hires won’t reduce the cap on Ws for the following year. Adds to the electronic monitoring of W visa holders to require they update the system when W nonimmigrants start and end employment in registered positions. The data will flow in to the new registry. Whitehouse 1 This section makes changes to the new INVEST visas. Amends Section 4801 to add “qualified startup accelerators” to the types of entities that can make investments in immigrant ventures for purposes of qualifying for INVEST visas. Allows investments from multiple investors or entities to be combined to meet the investment thresholds. Defines ‘qualified startup accelerator’ as a company that in the ordinary course of business, provides a program of training, mentorship, and logistical support to assist entrepreneurs in growing their businesses and is managed by individuals, the majority of whom are US citizens or permanent residents or entities organized in the US or is an entity that has received not less than $250,000 from a government entity in the previous five years and regularly makes grants to companies that participates in its programs. Such companies must regularly take equity stakes in the companies that participate in their programs including acquiring in the last five years equity in no fewer than 10 US business entities that have participated in its programs. Such businesses must have secured not less than $100,000 in initial investments or during the two year period following such acquisition generated not less than $500,000 in revenues. Franken 2 Deals with E-Verify accuracy issues in Section 3101. Once a year before November 30th, DHS’ Inspector General shall prepare a report setting forth the error rate of E-Verify from the previous fiscal year and describe the methods employed to prepare the report as well as recommendations to reduce the error rates. Error rates refer to individuals who receive further action notices, contested such notices and were found to be employment authorized divided by the number of total E-Verify inquiries. If the error rate is higher than .3%, civil penalties will be a maximum of $1000. Grassley 31 Amends Section 3101. Requires USCIS Director to produce a weekly report with information about nonconfirmations in E-Verify and to use such information for enforcement purposes. Coons 1 Amends Section 3101. Toughens provision which says DHS “may” notify people who are the subject of an E-Verify query to “shall” notify. Grassley 38 Amends Section 3101. DHS shall develop a reliable method for parents to suspend or limit the use of a child’s social security number. Franken 4 and Franken Second Degree Adds a new Section 3107 Office of the Small Business and Employee Advocate. DHS shall establish an Office of the Small Business and Employee Advocate to assist small businesses comply with I-9 and E- Verify requirements. The office will inform small businesses about the verification practices required by INA Section 274A, assist in dealing with nonconfirmation notices, advise on penalties for violations and propose changes to the administrative process. The OSBEA shall also make recommendations to Congress. Blumenthal 18 Modifies Section 3105. Makes it an unfair employment related practice for an employer that is required under the law to maintain records documenting employment, including dates or hours of work and wages received, to fail to provide such records to any employee upon request. Grassley 36 Amends Section 3101. Requires that an attestation regarding a minor’s identity for purposes of work authorization shall be made by a parent or guardian. Previous verison said anyone over 21 could do it.
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