View all text of Part I [§ 1151 - § 1161]
§ 1153. Allocation of immigrant visas
(a) Preference allocation for family-sponsored immigrantsAliens subject to the worldwide level specified in section 1151(c) of this title for family-sponsored immigrants shall be allotted visas as follows:
(1) Unmarried sons and daughters of citizens
(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliensQualified immigrants—
(A) who are the spouses or children of an alien lawfully admitted for permanent residence, or
(B) who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence,
shall be allocated visas in a number not to exceed 114,200, plus the number (if any) by which such worldwide level exceeds 226,000, plus any visas not required for the class specified in paragraph (1); except that not less than 77 percent of such visa numbers shall be allocated to aliens described in subparagraph (A).
(3) Married sons and married daughters of citizens
(4) Brothers and sisters of citizens
(b) Preference allocation for employment-based immigrantsAliens subject to the worldwide level specified in section 1151(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows:
(1) Priority workersVisas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):
(A) Aliens with extraordinary abilityAn alien is described in this subparagraph if—
(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and
(iii) the alien’s entry into the United States will substantially benefit prospectively the United States.
(B) Outstanding professors and researchersAn alien is described in this subparagraph if—
(i) the alien is recognized internationally as outstanding in a specific academic area,
(ii) the alien has at least 3 years of experience in teaching or research in the academic area, and
(iii) the alien seeks to enter the United States—(I) for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,(II) for a comparable position with a university or institution of higher education to conduct research in the area, or(III) for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.
(C) Certain multinational executives and managers
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability
(A) In general
(B) Waiver of job offer
(i) National interest waiver
(ii) Physicians working in shortage areas or veterans facilities(I) In generalThe Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if—(aa) the alien physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and(bb) a Federal agency or a department of public health in any State has previously determined that the alien physician’s work in such an area or at such facility was in the public interest.(II) Prohibition(III) Statutory construction(IV) Effective date
(C) Determination of exceptional ability
(3) Skilled workers, professionals, and other workers
(A) In generalVisas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2):
(i) Skilled workers
(ii) Professionals
(iii) Other workers
(B) Limitation on other workers
(C) Labor certification required
(4) Certain special immigrants
(5) Employment creation
(A) In generalVisas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise (including a limited partnership)—
(i) in which such alien has invested (after November 29, 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C) and which is expected to remain invested for not less than 2 years; and
(ii) which will benefit the United States economy by creating full-time employment for not fewer than 10 United States citizens, United States nationals, or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant’s spouse, sons, or daughters).
(B) Designations and reserved visas
(i) Reserved visas(I) In generalOf the visas made available under this paragraph in each fiscal year—(aa) 20 percent shall be reserved for qualified immigrants who invest in a rural area;(bb) 10 percent shall be reserved for qualified immigrants who invest in an area designated by the Secretary of Homeland Security under clause (ii) as a high unemployment area; and(cc) 2 percent shall be reserved for qualified immigrants who invest in infrastructure projects.(II) Unused visas(aa) Carryover(bb) General availability
(ii) Designation of high unemployment area(I) In generalThe Secretary of Homeland Security, or a designee of the Secretary who is an employee of the Department of Homeland Security, may designate, as a high unemployment area, a census tract, or contiguous census tracts, in which—(aa) the new commercial enterprise is principally doing business; and(bb) the weighted average of the unemployment rate for the census tracts, based on the labor force employment measure for each applicable census tract and any adjacent tract included under subclause (III), is not less than 150 percent of the national average unemployment rate.(II) Prohibition on designation by any other officialA targeted employment area may not be designated as a high unemployment area by—(aa) a Federal official other than the Secretary of Homeland Security or a designee of the Secretary; or(bb) any official of a State or local government.(III) Inclusion(IV) Duration(aa) In generalA designation under this clause shall be in effect for the 2-year period beginning on—(AA) the date on which an application under subparagraph (F) is filed; or(BB) in the case of an alien who is not subject to subparagraph (F), at the time of investment.(bb) Renewal(V) Additional investment not required
(iii) Infrastructure projects(I) In general(II) Prohibition on designation by any other officialA determination under subclause (I) may not be made by—(aa) a Federal official other than the Secretary of Homeland Security or a designee of the Secretary; or(bb) any official of a State or local government.
(C) Amount of capital required
(i) In general
(ii) Adjustment for targeted employment areas and infrastructure projects
(iii) Automatic adjustment in minimum investment amount(I)In general.—Beginning on January 1, 2027, and every 5 years thereafter, the amount in clause (i) shall automatically adjust for petitions filed on or after the effective date of each adjustment, based on the cumulative annual percentage change in the unadjusted consumer price index for all urban consumers (all items; U.S. city average) reported by the Bureau of Labor Statistics between January 1, 2022, and the date of adjustment. The qualifying investment amounts shall be rounded down to the nearest $50,000. The Secretary of Homeland Security shall update such amounts by publication of a technical amendment in the Federal Register.(II) Beginning on January 1, 2027, and every 5 years thereafter, the amount in clause (ii) shall automatically adjust for petitions filed on or after the effective date of each adjustment, to be equal to 75 percent of the standard investment amount under subclause (I).
(iv) Adjustment for high employment areasIn the case of an investment made in a part of a metropolitan statistical area that at the time of the investment—(I) is not a targeted employment area, and(II) is an area with an unemployment rate significantly below the national average unemployment rate,
the Secretary of Homeland Security may specify an amount of capital required under subparagraph (A) that is greater than (but not greater than 3 times) the amount specified in clause (i), as adjusted under clause (iii).
(D) DefinitionsIn this paragraph:
(i) Affiliated job-creating entity
(ii) CapitalThe term “capital”—(I) means cash and all real, personal, or mixed tangible assets owned and controlled by the alien investor, or held in trust for the benefit of the alien and to which the alien has unrestricted access;(II) shall be valued at fair market value in United States dollars, in accordance with Generally Accepted Accounting Principles or other standard accounting practice adopted by the Securities and Exchange Commission, at the time it is invested under this paragraph;(III) does not include—(aa) assets directly or indirectly acquired by unlawful means, including any cash proceeds of indebtedness secured by such assets;(bb) capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien investor and the new commercial enterprise;(cc) capital invested with a guaranteed rate of return on the amount invested by the alien investor; or(dd) except as provided in subclause (IV), capital invested that is subject to any agreement between the alien investor and the new commercial enterprise that provides the investor with a contractual right to repayment, such as a mandatory redemption at a certain time or upon the occurrence of a certain event, or a put or sell-back option held by the alien investor, even if such contractual right is contingent on the success of the new commercial enterprise, such as having sufficient available cash flow; and(IV) includes capital invested that—(aa) is subject to a buy back option that may be exercised solely at the discretion of the new commercial enterprise; and(bb) results in the alien investor withdrawing his or her petition unless the alien investor has fulfilled his or her sustainment period and other requirements under this paragraph.
(iii) Certifier
(iv) Infrastructure project
(v) Job-creating entity
(vi) New commercial enterprise
(vii) Rural area
(viii) Targeted employment area
(E) Regional center program
(i) In general
(ii) ProcessingIn processing petitions under section 1154(a)(1)(H) of this title for classification under this paragraph, the Secretary of Homeland Security—(I) shall prioritize the processing and adjudication of petitions for rural areas;(II) may process petitions in a manner and order established by the Secretary; and(III) shall deem such petitions to include records previously filed with the Secretary pursuant to subparagraph (F) if the alien petitioner certifies that such records are incorporated by reference into the alien’s petition.
(iii) Establishment of a regional centerA regional center shall operate within a defined, contiguous, and limited geographic area, which shall be described in the proposal and be consistent with the purpose of concentrating pooled investment within such area. The proposal to establish a regional center shall demonstrate that the pooled investment will have a substantive economic impact on such geographic area, and shall include—(I) reasonable predictions, supported by economically and statistically valid and transparent forecasting tools, concerning the amount of investment that will be pooled, the kinds of commercial enterprises that will receive such investments, details of the jobs that will be created directly or indirectly as a result of such investments, and other positive economic effects such investments will have;(II) a description of the policies and procedures in place reasonably designed to monitor new commercial enterprises and any associated job-creating entity to seek to ensure compliance with—(aa) all applicable laws, regulations, and Executive orders of the United States, including immigration laws, criminal laws, and securities laws; and(bb) all securities laws of each State in which securities offerings will be conducted, investment advice will be rendered, or the offerors or offerees reside;(III) attestations and information confirming that all persons involved with the regional center meet the requirements under clauses (i) and (ii) of subparagraph (H);(IV) a description of the policies and procedures in place that are reasonably designed to ensure program compliance; and(V) the identities of all natural persons involved in the regional center, as described in subparagraph (H)(v).
(iv) Indirect job creation(I) In general(II) Construction activity lasting less than 2 years
(v) Compliance(I) In generalIn determining compliance with subparagraph (A)(ii), the Secretary of Homeland Security shall permit aliens seeking admission under this subparagraph to rely on economically and statistically valid methodologies for determining the number of jobs created by the program, including—(aa) jobs estimated to have been created directly, which may be verified using such methodologies; and(bb) consistent with this subparagraph, jobs estimated to have been directly or indirectly created through capital expenditures, revenues generated from increased exports, improved regional productivity, job creation, and increased domestic capital investment resulting from the program.(II) Job and investment requirements(aa) Relocated jobs(bb) Publicly available bonds(cc) Construction activity jobs
(vi) AmendmentsThe Secretary of Homeland Security shall—(I) require a regional center—(aa) to notify the Secretary, not later than 120 days before the implementation of significant proposed changes to its organizational structure, ownership, or administration, including the sale of such center, or other arrangements which would result in individuals not previously subject to the requirements under subparagraph (H) becoming involved with the regional center; or(bb) if exigent circumstances are present, to provide the notice described in item (aa) to the Secretary not later than 5 business days after a change described in such item; and(II) adjudicate business plans under subparagraph (F) and petitions under section 1154(a)(1)(H) of this title during any notice period as long as the amendment to the business or petition does not negatively impact program eligibility.
(vii) Record keeping and audits(I) Record keepingEach regional center shall make and preserve, during the 5-year period beginning on the last day of the Federal fiscal year in which any transactions occurred, books, ledgers, records, and other documentation from the regional center, new commercial enterprise, or job-creating entity used to support—(aa) any claims, evidence, or certifications contained in the regional center’s annual statements under subparagraph (G); and(bb) associated petitions by aliens seeking classification under this section or removal of conditions under section 1186b of this title.(II) Audits(III) Termination
(F) Business plans for regional center investments
(i) Application for approval of an investment in a commercial enterpriseA regional center shall file an application with the Secretary of Homeland Security for each particular investment offering through an associated new commercial enterprise before any alien files a petition for classification under this paragraph by reason of investment in that offering. The application shall include—(I) a comprehensive business plan for a specific capital investment project;(II) a credible economic analysis regarding estimated job creation that is based upon economically and statistically valid and transparent methodologies;(III) any documents filed with the Securities and Exchange Commission under the Securities Act of 1933 (15 U.S.C. 77a et seq.) or with the securities regulator of any State, as required by law;(IV) any investment and offering documents, including subscription, investment, partnership, and operating agreements, private placement memoranda, term sheets, biographies of management, officers, directors, and any person with similar responsibilities, the description of the business plan to be provided to potential alien investors, and marketing materials used, or drafts prepared for use, in connection with the offering, which shall contain references, as appropriate, to—(aa) all material investment risks associated with the new commercial enterprise and the job-creating entity;(bb) any conflicts of interest that currently exist or may arise among the regional center, the new commercial enterprise, the job-creating entity, or the principals, attorneys, or individuals responsible for recruitment or promotion of such entities;(cc) any pending material litigation or bankruptcy, or material adverse judgments or bankruptcy orders issued during the most recent 10-year period, in the United States or in another country, affecting the regional center, the new commercial enterprise, any associated job-creating entity, or any other enterprise in which any principal of any of the aforementioned entities held majority ownership at the time; and(dd)(AA) any fees, ongoing interest, or other compensation paid, or to be paid by the regional center, the new commercial enterprise, or any issuer of securities intended to be offered to alien investors, to agents, finders, or broker dealers involved in the offering of securities to alien investors in connection with the investment;(BB) a description of the services performed, or that will be performed, by such person to entitle the person to such fees, interest, or compensation; and(CC) the name and contact information of any such person, if known at the time of filing;(V) a description of the policies and procedures, such as those related to internal and external due diligence, reasonably designed to cause the regional center and any issuer of securities intended to be offered to alien investors in connection with the relevant capital investment project, to comply, as applicable, with the securities laws of the United States and the laws of the applicable States in connection with the offer, purchase, or sale of its securities; and(VI) a certification from the regional center, and any issuer of securities intended to be offered to alien investors in connection with the relevant capital investment project, that their respective agents and employees, and any parties associated with the regional center and such issuer of securities affiliated with the regional center are in compliance with the securities laws of the United States and the laws of the applicable States in connection with the offer, purchase, or sale of its securities, to the best of the certifier’s knowledge, after a due diligence investigation.
(ii) Effect of approval of a business plan for an investment in a regional center’s commercial enterpriseThe approval of an application under this subparagraph, including an approval before the date of the enactment of this subparagraph, shall be binding for purposes of the adjudication of subsequent petitions seeking classification under this paragraph by immigrants investing in the same offering described in such application, and of petitions by the same immigrants filed under section 1186b of this title unless—(I) the applicant engaged in fraud, misrepresentation, or criminal misuse;(II) such approval would threaten public safety or national security;(III) there has been a material change that affects eligibility;(IV) the discovery of other evidence affecting program eligibility was not disclosed by the applicant during the adjudication process; or(V) the previous adjudication involved a material mistake of law or fact.
(iii) Amendments(I) Approval(II) IncorporationUpon the approval of a timely filed amendment to an approved application, any changes reflected in such amendment may be incorporated into and considered in determining program eligibility through adjudication of—(aa) pending petitions from immigrants investing in the offering described in the approved application who are seeking classification under this paragraph; and(bb) petitions by immigrants described in item (aa) that are filed under section 1186b of this title.
(iv) Site visitsThe Secretary of Homeland Security shall—(I) perform site visits to regional centers not earlier than 24 hours after providing notice of such site visit; and(II) perform at least 1 site visit to, as applicable, each new commercial enterprise or job-creating entity, or the business locations where any jobs that are claimed as being created.
(v) Parameters for capital redeployment(I) In generalThe Secretary of Homeland Security shall prescribe regulations, in accordance with subchapter II of chapter 5 and chapter 7 of title 5 (commonly known as the “Administrative Procedure Act”), that allow a new commercial enterprise to redeploy investment funds anywhere within the United States or its territories for the purpose of maintaining the investors’ capital at risk if—(aa) the new commercial enterprise has executed the business plan for a capital investment project in good faith without a material change;(bb) the new commercial enterprise has created a sufficient number of new full time positions to satisfy the job creation requirements of the program for all investors in the new commercial enterprise, either directly or indirectly, as evidenced by the methodologies set forth in this chapter;(cc) the job creating entity has repaid the capital initially deployed in conformity with the initial investment contemplated by the business plan; and(dd) the capital, after repayment by the job creating entity, remains at risk and it is not redeployed in passive investments, such as stocks or bonds.(II) Termination
(G) Regional center annual statements
(i) In generalEach regional center designated under subparagraph (E) shall submit an annual statement, in a manner prescribed by the Secretary of Homeland Security. Each such statement shall include—(I) a certification stating that, to the best of the certifier’s knowledge, after a due diligence investigation, the regional center is in compliance with clauses (i) and (ii) of subparagraph (H);(II) a certification described in subparagraph (I)(ii)(II);(III) a certification stating that, to the best of the certifier’s knowledge, after a due diligence investigation, the regional center is in compliance with subparagraph (K)(iii);(IV) a description of any pending material litigation or bankruptcy proceedings, or material litigation or bankruptcy proceedings resolved during the preceding fiscal year, involving the regional center, the new commercial enterprise, or any affiliated job-creating entity;(V) an accounting of all individual alien investor capital invested in the regional center, new commercial enterprise, and job-creating entity;(VI) for each new commercial enterprise associated with the regional center—(aa) an accounting of the aggregate capital invested in the new commercial enterprise and any job-creating entity by alien investors under this paragraph for each capital investment project being undertaken by the new commercial enterprise;(bb) a description of how the capital described in item (aa) is being used to execute each capital investment project in the filed business plan or plans;(cc) evidence that 100 percent of the capital described in item (aa) has been committed to each capital investment project;(dd) detailed evidence of the progress made toward the completion of each capital investment project;(ee) an accounting of the aggregate direct jobs created or preserved;(ff) to the best of the regional center’s knowledge, for all fees, including administrative fees, loan monitoring fees, loan management fees, commissions and similar transaction-based compensation, collected from alien investors by the regional center, the new commercial enterprise, any affiliated job-creating entity, any affiliated issuer of securities intended to be offered to alien investors, or any promoter, finder, broker-dealer, or other entity engaged by any of the aforementioned entities to locate individual investors—(AA) a description of all fees collected;(BB) an accounting of the entities that received such fees; and(CC) the purpose for which such fees were collected;(gg) any documentation referred to in subparagraph (F)(i)(IV) if there has been a material change during the preceding fiscal year; and(hh) a certification by the regional center that the information provided under items (aa) through (gg) is accurate, to the best of the certifier’s knowledge, after a due diligence investigation; and(VII) a description of the regional center’s policies and procedures that are designed to enable the regional center to comply with applicable Federal labor laws.
(ii) Amendment of annual statementsThe Secretary of Homeland Security—(I) shall require the regional center to amend or supplement an annual statement required under clause (i) if the Secretary determines that such statement is deficient; and(II) may require the regional center to amend or supplement such annual statement if the Director determines that such an amendment or supplement is appropriate.
(iii) Sanctions(I) Effect of violationThe Director shall sanction any regional center entity in accordance with subclause (II) if the regional center fails to submit an annual statement or if the Director determines that the regional center—(aa) knowingly submitted or caused to be submitted a statement, certification, or any information submitted pursuant to this subparagraph that contained an untrue statement of material fact; or(bb) is conducting itself in a manner inconsistent with its designation under subparagraph (E), including any willful, undisclosed, and material deviation by new commercial enterprises from any filed business plan for such new commercial enterprises.(II) Authorized sanctionsThe Director shall establish a graduated set of sanctions based on the severity of the violations referred to in subclause (I), including—(aa) fines equal to not more than 10 percent of the total capital invested by alien investors in the regional center’s new commercial enterprises or job-creating entities directly involved in such violations, the payment of which shall not in any circumstance utilize any of such alien investors’ capital investments, and which shall be deposited into the EB–5 Integrity Fund established under subparagraph (J);(bb) temporary suspension from participation in the program described in subparagraph (E), which may be lifted by the Director if the individual or entity cures the alleged violation after being provided such an opportunity by the Director;(cc) permanent bar from participation in the program described in subparagraph (E) for 1 or more individuals or business entities associated with the regional center, new commercial enterprise, or job-creating entity; and(dd) termination of regional center designation.
(iv) Availability of annual statements to investors
(H) Bona fides of persons involved with regional center program
(i) In generalThe Secretary of Homeland Security may not permit any person to be involved with any regional center, new commercial enterprise, or job-creating entity if—(I) the person has been found to have committed—(aa) a criminal or civil offense involving fraud or deceit within the previous 10 years;(bb) a civil offense involving fraud or deceit that resulted in a liability in excess of $1,000,000; or(cc) a crime for which the person was convicted and sentenced to a term of imprisonment of more than 1 year;(II) the person is subject to a final order, for the duration of any penalty imposed by such order, of a State securities commission (or an agency or officer of a State performing similar functions), a State authority that supervises or examines banks, savings associations, or credit unions, a State insurance commission (or an agency or officer of a State performing similar functions), an appropriate Federal banking agency, the Commodity Futures Trading Commission, the Securities and Exchange Commission, a financial self-regulatory organization recognized by the Securities and Exchange Commission, or the National Credit Union Administration, which is based on a violation of any law or regulation that—(aa) prohibits fraudulent, manipulative, or deceptive conduct; or(bb) bars the person from—(AA) association with an entity regulated by such commission, authority, agency, or officer;(BB) appearing before such commission, authority, agency, or officer;(CC) engaging in the business of securities, insurance, or banking; or(DD) engaging in savings association or credit union activities;(III) the Secretary determines that the person is engaged in, has ever been engaged in, or seeks to engage in—(aa) any illicit trafficking in any controlled substance or in any listed chemical (as defined in section 802 of title 21);(bb) any activity relating to espionage, sabotage, or theft of intellectual property;(cc) any activity related to money laundering (as described in section 1956 or 1957 of title 18);(dd) any terrorist activity (as defined in section 1182(a)(3)(B) of this title);(ee) any activity constituting or facilitating human trafficking or a human rights offense;(ff) any activity described in section 1182(a)(3)(E) of this title; or(gg) the violation of any statute, regulation, or Executive order regarding foreign financial transactions or foreign asset control; or(IV) the person—(aa) is, or during the preceding 10 years has been, included on the Department of Justice’s List of Currently Disciplined Practitioners; or(bb) during the preceding 10 years, has received a reprimand or has otherwise been publicly disciplined for conduct related to fraud or deceit by a State bar association of which the person is or was a member.
(ii) Foreign involvement in regional center program(I) Lawful status requiredA person may not be involved with a regional center unless the person—(aa) is a national of the United States or an individual who has been lawfully admitted for permanent residence (as such terms are defined in paragraphs (20) and (22) of section 1101(a) of this title); and(bb) is not the subject of rescission or removal proceedings.(II) Foreign governments(III) Rulemaking
(iii) Information requiredThe Secretary of Homeland Security—(I) shall require such attestations and information, including the submission of fingerprints or other biometrics to the Federal Bureau of Investigation with respect to a regional center, a new commercial enterprise, and any affiliated job creating entity, and persons involved with such entities (as described in clause (v)), as may be necessary to determine whether such entities are in compliance with clauses (i) and (ii);(II) shall perform such criminal record checks and other background and database checks with respect to a regional center, a new commercial enterprise, and any affiliated job-creating entity, and persons involved with such entities (as described in clause (v)), as may be necessary to determine whether such entities are in compliance with clauses (i) and (ii); and(III) may, at the Secretary’s discretion, require the information described to in subclause (I) and may perform the checks described in subclause (II) with respect to any job creating entity and persons involved with such entity if there is a reasonable basis to believe such entity or person is not in compliance with clauses (i) and (ii).
(iv) Termination(I) In generalThe Secretary of Homeland Security may suspend or terminate the designation of any regional center, or the participation under the program of any new commercial enterprise or job-creating entity under this paragraph if the Secretary determines that such entity—(aa) knowingly involved a person with such entity in violation of clause (i) or (ii) by failing, within 14 days of acquiring such knowledge—(AA) to take commercially reasonable efforts to discontinue the prohibited person’s involvement; or(BB) to provide notice to the Secretary;(bb) failed to provide an attestation or information requested by the Secretary under clause (iii)(I); or(cc) knowingly provided any false attestation or information under clause (iii)(I).(II) Limitation(III) Information(aa) Notification(bb) Effect of failure to respond
(v) Persons involved with a regional center, new commercial enterprise, or job-creating entity
(I) Compliance with securities laws
(i) Jurisdiction(I) In general(II) Compliance with regulation s(III) Savings provision
(ii) Regional center certifications required(I) Initial certificationThe Secretary of Homeland Security may not approve an application for regional center designation or regional center amendment unless the regional center certifies that, to the best of the certifier’s knowledge, after a due diligence investigation, the regional center is in compliance with and has policies and procedures, including those related to internal and external due diligence, reasonably designed to confirm, as applicable, that all parties associated with the regional center are and will remain in compliance with the securities laws of the United States and of any State in which—(aa) the offer, purchase, or sale of securities was conducted;(bb) the issuer of securities was located; or(cc) the investment advice was provided by the regional center or parties associated with the regional center.(II) ReissueA regional center shall annually reissue a certification described in subclause (I), in accordance with subparagraph (G), to certify compliance with clause (iii) by stating that—(aa) the certification is made by a certifier;(bb) to the best of the certifier’s knowledge, after a due diligence investigation, all such offers, purchases, and sales of securities or the provision of investment advice complied with the securities laws of the United States and the securities laws of any State in which—(AA) the offer, purchase, or sale of securities was conducted;(BB) the issuer of securities was located; or(CC) the investment advice was provided; and(cc) records, data, and information related to such offers, purchases, and sales have been maintained.(III) Effect of noncomplianceIf a regional center, through its due diligence, discovered during the previous fiscal year that the regional center or any party associated with the regional center was not in compliance with the securities laws of the United States or the securities laws of any State in which the securities activities were conducted by any party associated with the regional center, the certifier shall—(aa) describe the activities that led to noncompliance;(bb) describe the actions taken to remedy the noncompliance; and(cc) certify that the regional center and all parties associated with the regional center are currently in compliance, to the best of the certifier’s knowledge, after a due diligence investigation.
(iii) Oversight requiredEach regional center shall—(I) use commercially reasonable efforts to monitor and supervise compliance with the securities laws in relations to all offers, purchases, and sales of, and investment advice relating to, securities made by parties associated with the regional center;(II) maintain records, data, and information relating to all such offers, purchases, sales, and investment advice during the 5-year period beginning on the date of their creation; and(III) make the records, data, and information described in subclause (II) available to the Secretary or to the Securities and Exchange Commission upon request.
(iv) Suspension or terminationIn addition to any other authority provided to the Secretary under this paragraph, the Secretary, in the Secretary’s discretion, may suspend or terminate the designation of any regional center or impose other sanctions against the regional center if the regional center, or any parties associated with the regional center that the regional center knew or reasonably should have known—(I) are permanently or temporarily enjoined by order, judgment, or decree of any court of competent jurisdiction in connection with the offer, purchase, or sale of a security or the provision of investment advice;(II) are subject to any final order of the Securities and Exchange Commission or a State securities regulator that—(aa) bars such person from association with an entity regulated by the Securities and Exchange Commission or a State securities regulator; or(bb) constitutes a final order based on a finding of an intentional violation or a violation related to fraud or deceit in connection with the offer, purchase, or sale of, or investment advice relating to, a security; or(III) submitted, or caused to be submitted, a certification described in clause (ii) that contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
(v) Defined termIn this subparagraph, the term “parties associated with a regional center” means—(I) the regional center;(II) any new commercial enterprise or affiliated job-creating entity or issuer of securities associated with the regional center;(III) the regional center’s and new commercial enterprise’s owners, officers, directors, managers, partners, agents, employees, promoters and attorneys, or similar position, as determined by the Secretary; and(IV) any person under the control of the regional center, new commercial enterprise, or issuer of securities associated with the regional center who is responsible for the marketing, offering, or sale of any security offered in connection with the capital investment project.
(vi) Savings provision
(J) EB–5 Integrity Fund
(i) Establishment
(ii) Fees(I) Annual feeOn October 1, 2022, and each October 1 thereafter, the Secretary of Homeland Security shall collect for the Fund an annual fee—(aa) except as provided in item (bb), of $20,000 from each regional center designated under subparagraph (E); and(bb) of $10,000 from each such regional center with 20 or fewer total investors in the preceding fiscal year in its new commercial enterprises.(II) Petition fee(III) Increases
(iii) Permissible uses of fundThe Secretary shall—(I) use not less than ⅓ of the amounts deposited into the Fund for investigations based outside of the United States, including—(aa) monitoring and investigating program-related events and promotional activities; and(bb) ensuring an alien investor’s compliance with subparagraph (L); and(II) use amounts deposited into the Fund—(aa) to detect and investigate fraud or other crimes;(bb) to determine whether regional centers, new commercial enterprises, job-creating entities, and alien investors (and their alien spouses and alien children) comply with the immigration laws;(cc) to conduct audits and site visits; and(dd) as the Secretary determines to be necessary, including monitoring compliance with the requirements under section 1153a of this title.
(iv) Failure to pay feeThe Secretary of Homeland Security shall—(I) impose a reasonable penalty, which shall be deposited into the Fund, if any regional center does not pay the fee required under clause (ii) within 30 days after the date on which such fee is due; and(II) terminate the designation of any regional center that does not pay the fee required under clause (ii) within 90 days after the date on which such fee is due.
(v) Report
(K) Direct and third-party promoters
(i) Rules and standardsDirect and third-party promoters (including migration agents) of a regional center, any new commercial enterprise, an affiliated job-creating entity, or an issuer of securities intended to be offered to alien investors in connection with a particular capital investment project shall comply with the rules and standards prescribed by the Secretary of Homeland Security and any applicable Federal or State securities laws, to oversee promotion of any offering of securities related to the EB–5 Program, including—(I) registration with U.S. Citizenship and Immigration Services, which—(aa) includes identifying and contact information for such promoter and confirmation of the existence of the written agreement required under clause (iii); and(bb) may be made publicly available at the discretion of the Secretary;(II) certification by each promoter that such promoter is not ineligible under subparagraph (H)(i);(III) guidelines for accurately representing the visa process to foreign investors; and(IV) guidelines describing permissible fee arrangements under applicable securities and immigration laws.
(ii) Effect of violation
(iii) Compliance
(iv) Disclosure
(L) Source of funds
(i) In general
(ii) Required informationThe Secretary of Homeland Security shall require that an alien investor’s petition under this paragraph contain, as applicable—(I) business and tax records, or similar records, including—(aa) foreign business registration records;(bb) corporate or partnership tax returns (or tax returns of any other entity in any form filed in any country or subdivision of such country), and personal tax returns, including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind, filed during the past 7 years (or another period to be determined by the Secretary to ensure that the investment is obtained from a lawful source of funds) with any taxing jurisdiction within or outside the United States by or on behalf of the alien investor; and(cc) any other evidence identifying any other source of capital or administrative fees;(II) evidence related to monetary judgments against the alien investor, including certified copies of any judgments, and evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving possible monetary judgments against the alien investor from any court within or outside the United States; and(III) the identity of all persons who transfer into the United States, on behalf of the investor, any funds that are used to meet the capital requirement under subparagraph (A).
(iii) Gift and loan restrictions(I) In generalGifted and borrowed funds may not be counted toward the minimum capital investment requirement under subparagraph (C) unless such funds—(aa) were gifted or loaned to the alien investor in good faith; and(bb) were not gifted or loaned to circumvent any limitations imposed on permissible sources of capital under this subparagraph, including but not limited to proceeds from illegal activity.(II) Records requirement
(M) Treatment of good faith investors following program noncompliance
(i) Termination or debarment of EB–5 entityExcept as provided in clause (vi), upon the termination or debarment, as applicable, from the program under this paragraph of a regional center, a new commercial enterprise, or a job-creating entity—(I) an otherwise qualified petition under section 1154(a)(1)(H) of this title or the conditional permanent residence of an alien who has been admitted to the United States pursuant to section 1186b(a)(1) of this title based on an investment in a terminated regional center, new commercial enterprise, or job-creating entity shall remain valid or continue to be authorized, as applicable, consistent with this subparagraph; and(II) the Secretary of Homeland Security shall notify the alien beneficiaries of such petitions of such termination or debarment.
(ii) New regional center or investmentThe petition under section 1154(a)(1)(H) of this title of an alien described in clause (i) and the conditional permanent resident status of an alien described in clause (i) shall be terminated 180 days after notification of the termination from the program under this paragraph of a regional center, a new commercial enterprise, or a job creating entity (but not sooner than 180 days after March 15, 2022) unless—(I) in the case of the termination of a regional center—(aa) the new commercial enterprise associates with an approved regional center, regardless of the approved geographical boundaries of such regional center’s designation; or(bb) such alien makes a qualifying investment in another new commercial enterprise; or(II) in the case of the debarment of a new commercial enterprise or job-creating entity, such alien—(aa) associates with a new commercial enterprise in good standing; and(bb) invests additional investment capital solely to the extent necessary to satisfy remaining job creation requirements under subparagraph (A)(ii).
(iii) Amendments(I) Filing requirement(II) Determination of eligibilityFor purposes of determining eligibility under subclause (I)—(aa) the Secretary shall permit amendments to the business plan, without such facts underlying the amendment being deemed a material change; and(bb) may deem any funds obtained or recovered by an alien investor, directly or indirectly, from claims against third parties, including insurance proceeds, or any additional investment capital provided by the alien, to be such alien’s investment capital for the purposes of subparagraph (A) if such investment otherwise complies with the requirements under this paragraph and section 1186b of this title.
(iv) Removal of conditions
(v) RemediesFor petitions approved under clause (ii), including following an amendment filed under clause (iii), the Secretary—(I) shall retain the immigrant visa priority date related to the original petition and prevent age-out of derivative beneficiaries; and(II) may hold such petition in abeyance and extend any applicable deadlines under this paragraph.
(vi) ExceptionIf the Secretary has reason to believe that an alien was a knowing participant in the conduct that led to the termination of a regional center, new commercial enterprise, or job-creating entity described in clause (i)—(I) the alien shall not be accorded any benefit under this subparagraph; and(II) the Secretary shall—(aa) notify the alien of such belief; and(bb) subject to section 1186b(b)(2) of this title, shall deny or initiate proceedings to revoke the approval of such alien’s petition, application, or benefit (and that of any spouse or child, if applicable) described in this paragraph.
(N) Threats to the national interest
(i) Denial or revocation
(ii) DocumentsThe documents described in this clause are—(I) a certification, designation, or amendment to the designation of a regional center;(II) a petition seeking classification of an alien as an alien investor under this paragraph;(III) a petition to remove conditions under section 1186b of this title;(IV) an application for approval of a business plan in a new commercial enterprise under subparagraph (F); or(V) a document evidencing conditional permanent resident status that was issued to an alien pursuant to section 1186b of this title.
(iii) Debarment
(iv) NoticeIf the Secretary of Homeland Security determines that the approval of a petition, application, or benefit described in this paragraph should be denied or revoked pursuant to clause (i), the Secretary shall—(I) notify the relevant individual, regional center, or commercial entity of such determination;(II) deny or revoke such petition, application, or benefit or terminate the permanent resident status of the alien (and the alien spouse and alien children of such immigrant), as of the date of such determination; and(III) provide any United States-owned regional center, new commercial enterprise, or job creating entity an explanation for such determination unless the relevant information is classified or disclosure is otherwise prohibited under law.
(v) Judicial review
(O) Fraud, misrepresentation, and criminal misuse
(i) Denial or revocation
(ii) Debarment
(iii) NoticeIf the Secretary determines that the approval of a petition, application, or benefit described in this paragraph should be denied or revoked pursuant to clause (i), the Secretary shall—(I) notify the relevant individual, regional center, or commercial entity of such determination; and(II) deny or revoke such petition, application, or benefit or terminate the permanent resident status of the alien (and the alien spouse and alien children of such immigrant), in accordance with clause (i), as of the date of such determination.
(P) Administrative appellate review
(i) In generalThe Director of U.S. Citizenship and Immigration Services shall provide an opportunity for an administrative appellate review by the Administrative Appeals Office of U.S. Citizenship and Immigration Services of any determination made under this paragraph, including—(I) an application for regional center designation or regional center amendment;(II) an application for approval of a business plan filed under subparagraph (F);(III) a petition by an alien investor for status as an immigrant under this paragraph;(IV) the termination or suspension of any benefit accorded under this paragraph; and(V) any sanction imposed by the Secretary under this paragraph.
(ii) Judicial review
(Q) Fund administration
(i) In general
(ii) Use of fundsAmounts in a separate account may only—(I) be transferred to another separate account or a job creating entity;(II) otherwise be deployed into the capital investment project for which the funds were intended; or(III) be transferred to the alien investor who contributed the funds as a refund of that investor’s capital investment, if otherwise permitted under this paragraph.
(iii) Deployment of funds into an affiliated job-creating entityIf amounts are transferred to an affiliated job-creating entity pursuant to clause (ii)(I)—(I) the affiliated job-creating entity shall maintain such amounts in a separate account until they are deployed into the capital investment project for which they were intended; and(II) not later than 30 days after such amounts are deployed pursuant to subclause (I), the affiliated job-creating entity shall provide written notice to the fund administrator retained pursuant to clause (iv) that a construction consultant or other individual authorized by the Secretary has verified that such amounts have been deployed into the project.
(iv) Fund administratorExcept as provided in clause (v), the new commercial enterprise shall retain a fund administrator to fulfill the requirements under this subparagraph. The fund administrator—(I) shall be independent of, and not directly related to, the new commercial enterprise, the regional center associated with the new commercial enterprise, the job creating entity, or any of the principals or managers of such entities;(II) shall be licensed, active, and in good standing as—(aa) a certified public accountant;(bb) an attorney;(cc) a broker-dealer or investment adviser registered with the Securities and Exchange Commission; or(dd) an individual or company that otherwise meets such requirements as may be established by the Secretary;(III) shall monitor and track any transfer of amounts from the separate account;(IV) shall serve as a cosignatory on all separate accounts;(V) before any transfer of amounts from a separate account, shall—(aa) verify that the transfer complies with all governing documents, including organizational, operational, and investment documents; and(bb) approve such transfer with a written or electronic signature;(VI) shall periodically provide each alien investor with information about the activity of the account in which the investor’s capital investment is held, including—(aa) the name and location of the bank or financial institution at which the account is maintained;(bb) the history of the account; and(cc) any additional information required by the Secretary; and(VII) shall make and preserve, during the 5-year period beginning on the last day of the Federal fiscal year in which any transactions occurred, books, ledgers, records, and other documentation necessary to comply with this clause, which shall be provided to the Secretary upon request.
(v) Waiver(I) Waiver permitted(II) Waiver required
(vi) Defined termIn this subparagraph, the term “separate account” means an account that—(I) is maintained in the United States by a new commercial enterprise or job creating entity at a federally regulated bank or at another financial institution (as defined in section 20 of title 18) in the United States;(II) is insured; and(III) contains only the pooled investment funds of alien investors in a new commercial enterprise with respect to a single capital investment project.
(R) Required checks
(S) Protection from expired legislationNotwithstanding the expiration of legislation authorizing the regional center program under subparagraph (E), the Secretary of Homeland Security—
(i) shall continue processing petitions under sections 1154(a)(1)(H) and 1186b of this title based on an investment in a new commercial enterprise associated with a regional center that were filed on or before September 30, 2026;
(ii) may not deny a petition described in clause (i) based on the expiration of such legislation; and
(iii) may not suspend or terminate the allocation of visas to the beneficiaries of approved petitions described in clause (i).
(6) Special rules for “K” special immigrants
(A) Not counted against numerical limitation in year involved
(B) Counted against numerical limitations in following year
(i) Reduction in employment-based immigrant classifications
(ii) Reduction in per country level
(iii) Reduction in employment-based immigrant classifications within per country ceiling
(c) Diversity immigrants
(1) In generalExcept as provided in paragraph (2), aliens subject to the worldwide level specified in section 1151(e) of this title for diversity immigrants shall be allotted visas each fiscal year as follows:
(A) Determination of preference immigration
(B) Identification of high-admission and low-admission regions and high-admission and low-admission statesThe Attorney General—
(i) shall identify—(I) each region (each in this paragraph referred to as a “high-admission region”) for which the total of the numbers determined under subparagraph (A) for states in the region is greater than ⅙ of the total of all such numbers, and(II) each other region (each in this paragraph referred to as a “low-admission region”); and
(ii) shall identify—(I) each foreign state for which the number determined under subparagraph (A) is greater than 50,000 (each such state in this paragraph referred to as a “high-admission state”), and(II) each other foreign state (each such state in this paragraph referred to as a “low-admission state”).
(C) Determination of percentage of worldwide immigration attributable to high-admission regions
(D) Determination of regional populations excluding high-admission states and ratios of populations of regions within low-admission regions and high-admission regionsThe Attorney General shall determine—
(i) based on available estimates for each region, the total population of each region not including the population of any high-admission state;
(ii) for each low-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the low-admission regions; and
(iii) for each high-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the high-admission regions.
(E) Distribution of visas
(i) No visas for natives of high-admission states
(ii) For low-admission states in low-admission regionsSubject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a low-admission region is the product of—(I) the percentage determined under subparagraph (C), and(II) the population ratio for that region determined under subparagraph (D)(ii).
(iii) For low-admission states in high-admission regionsSubject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a high-admission region is the product of—(I) 100 percent minus the percentage determined under subparagraph (C), and(II) the population ratio for that region determined under subparagraph (D)(iii).
(iv) Redistribution of unused visa numbers
(v) Limitation on visas for natives of a single foreign state
(F) “Region” definedOnly for purposes of administering the diversity program under this subsection, Northern Ireland shall be treated as a separate foreign state, each colony or other component or dependent area of a foreign state overseas from the foreign state shall be treated as part of the foreign state, and the areas described in each of the following clauses shall be considered to be a separate region:
(i) Africa.
(ii) Asia.
(iii) Europe.
(iv) North America (other than Mexico).
(v) Oceania.
(vi) South America, Mexico, Central America, and the Caribbean.
(2) Requirement of education or work experienceAn alien is not eligible for a visa under this subsection unless the alien—
(A) has at least a high school education or its equivalent, or
(B) has, within 5 years of the date of application for a visa under this subsection, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience.
(3) Maintenance of information
(d) Treatment of family members
(e) Order of consideration
(1) Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General (or in the case of special immigrants under section 1101(a)(27)(D) of this title, with the Secretary of State) as provided in section 1154(a) of this title.
(2) Immigrant visa numbers made available under subsection (c) (relating to diversity immigrants) shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State for the fiscal year involved.
(3) Waiting lists of applicants for visas under this section shall be maintained in accordance with regulations prescribed by the Secretary of State.
(f) Authorization for issuance
(g) Lists
(h) Rules for determining whether certain aliens are children
(1) In generalFor purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 1101(b)(1) of this title shall be made using—
(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
(2) Petitions describedThe petition described in this paragraph is—
(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 1154 of this title for classification of an alien child under subsection (a)(2)(A); or
(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 1154 of this title for classification of the alien’s parent under subsection (a), (b), or (c).
(3) Retention of priority date
(4) Application to self-petitions
(5) Age determination for children of alien investors
(June 27, 1952, ch. 477, title II, ch. 1, § 203, 66 Stat. 178; Pub. L. 85–316, § 3, Sept. 11, 1957, 71 Stat. 639; Pub. L. 86–363, §§ 1–3, Sept. 22, 1959, 73 Stat. 644; Pub. L. 89–236, § 3, Oct. 3, 1965, 79 Stat. 912; Pub. L. 94–571, § 4, Oct. 20, 1976, 90 Stat. 2705; Pub. L. 95–412, § 3, Oct. 5, 1978, 92 Stat. 907; Pub. L. 95–417, § 1, Oct. 5, 1978, 92 Stat. 917; Pub. L. 96–212, title II, § 203(c), (i), Mar. 17, 1980, 94 Stat. 107, 108; Pub. L. 101–649, title I, §§ 111, 121(a), 131, 162(a)(1), title VI, § 603(a)(3), Nov. 29, 1990, 104 Stat. 4986, 4987, 4997, 5009, 5082; Pub. L. 102–110, § 2(b), Oct. 1, 1991, 105 Stat. 555; Pub. L. 102–232, title III, § 302(b)(2), (e)(3), Dec. 12, 1991, 105 Stat. 1743, 1745; Pub. L. 103–416, title II, §§ 212(b), 219(c), Oct. 25, 1994, 108 Stat. 4314, 4316; Pub. L. 106–95, § 5, Nov. 12, 1999, 113 Stat. 1318; Pub. L. 106–113, div. B, § 1000(a)(1) [title I, § 117], Nov. 29, 1999, 113 Stat. 1535, 1501A–21; Pub. L. 106–536, § 1(b)(1), Nov. 22, 2000, 114 Stat. 2560; Pub. L. 107–208, § 3, Aug. 6, 2002, 116 Stat. 928; Pub. L. 107–273, div. C, title I, §§ 11035, 11036(a), Nov. 2, 2002, 116 Stat. 1846; Pub. L. 109–162, title VIII, § 805(b)(2), Jan. 5, 2006, 119 Stat. 3056; Pub. L. 117–103, div. BB, §§ 102(a), (b), 103(b)(1), (c)(1), 108, Mar. 15, 2022, 136 Stat. 1070, 1074, 1075, 1100, 1109.)