Summary of S. 744 amendments from 5-16-2013 by GregSiskind

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									Siskind Summary

Greg Siskind (gsiskind@visalaw.com)

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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