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Immigrant Investor Pilot Program [59 FR 17920 - 17921][FR 24-94]
FEDERAL REGISTER CITE:
59 FR 17920 - 17921
April 15, 1994
BILLING CODE: 4410-10
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS No. 1609-93]
Immigrant Investor Pilot Program
Immigration and Naturalization Service, Justice.
This rule implements section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 ("Appropriations Act"). Section 610 of the Appropriations Act provides that the Secretary of State, together with the Attorney General, shall setaside visas for a pilot program (the "Immigrant Investor Pilot Program") to implement the provisions of section 203(b)(5) of the Immigration and Nationality Act, as amended (the "Act"). Under the pilot program, 300 im
migrant visas will be set aside annually for five years for aliens who make qualifying investments in commercial enterprises located within regional centers in the United States for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment.
April 15, 1994.
FOR FURTHER INFORMATION CONTACT:
Michael W. Straus, Senior Immigration Examiner, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW., room 7122, Washington, DC 20536, telephone (202) 514-5014.
On August 24, 1993, the Acting Commissioner of the Immigration and Naturalization Service (the "Service") published in the
at 58 FR 44606-44610 an interim rule with request for comments to implement the Immigrant Investor Pilot Program (the "Pilot Program").
The Immigrant Investor Pilot Program sets aside 300 immigrant visas annually over a five-year period for aliens who make qualifying investments in commercial enterprises located within regional centers designated by the Service for participation in the Pilot Program. The interim rule implemented the Pilot Program by providing the criteria and procedures for obtaining approval as a regional center and by allowing for indirect job creation by aliens seeking to immigrate under section 203(b)(5) of the Act who
make a qualifying investment within a designated regional center.
Section 610 of the Appropriations Act, Public Law 102-395, dated October 6, 1992, modifies the job creation provision found in section 203(b)(5) of the Act, which requires the petitioner to create ten new jobs. For qualifying investments made within regional centers, the alien may establish "reasonable methodologies" to determine the number of jobs created, "including such jobs which are estimated to have been created indirectly through revenues generated from increased exports." The interim regulation amen
ded 8 CFR 204.6(j)(4)(iii), allowing the petitioner to show, by reasonable methodologies, that his or her investment within the regional center will indirectly create ten full-time positions.
In order for an alien to file a petition under the Pilot Program, the alien must make the investment in a new commercial enterprise located within a regional center. Section 610 states that the regional center shall promote economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. 8 CFR 204.6(m) sets forth five criteria for adjudicating regional center designation proposals. Under this interim regulation, the Assistant Commiss
ioner for Adjudications is charged with determining whether the economic unit submitting the proposal qualifies as a regional center.
The public was provided with a 30-day period, ending on September 23, 1993, to comment on the interim regulation. The Service received one comment.
The one commenter suggested that the Service define the term "regional" to mean an "operating area," as used in the Small Business Administration's Small Business Investment Corporation license application, which is defined as a state, section of a state, or other political subdivision. 8 CFR 204.6(m)(3)(i) defines the term "regional" more broadly, requiring the regional center to focus on a geographic region of the United States. There is no indication in either the Appropriations Act or in the legislative
history of what Congress meant by the term "regional." Because Congress did not place any geographical limits on regional centers in establishing the Pilot Program, the Service believes it is appropriate to define the term "regional" in a flexible manner. The requirement that the regional center focus on a geographical area of the United States, therefore, will not be changed.
The commenter also suggested that if part of the investment is made outside the regional center, the alien investor should still qualify under the Pilot Program. The legislative history indicates that Congress intended to determine the viability of pooling investments in specific regions of the United States. See S. Rep. No. 918, 102 Cong., 2d Sess. (1992). Counting funds invested outside a regional center toward meeting the minimum statutory amount would, therefore, be inconsistent with the intent of Congr
ess in enacting section 610 of the Appropriations Act.
The commenter next addressed 8 CFR 204.6(j)(4)(iii) and 8 CFR 204.6(m)(3)(ii) of the interim rule, which require that the regional center and the individual investment create jobs indirectly through exports. Section 610(a) of the Appropriations Act states that "the Pilot Program shall involve a regional center in the United States for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased capital investment." Section 610(c) of the Appr
opriations Act provides that aliens admitted under the Pilot Program may establish "reasonable methodologies for determining the number of jobs created by the Pilot Program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports resulting from the Pilot Program." The commenter argued that the language of section 610(a) and section 610(c) is exemplary rather than mandatory and that neither the alien nor the regional center must create jobs th
rough increased exports. By using the term "including" in the statute, Congress indicated its intent to specifically require that the investment in the regional center create jobs through increased exports. It should be noted that 8 CFR 204.6(m)(7)(i) of the interim regulation defines exports very broadly, by defining exports as services or goods produced directly or indirectly through revenues generated from a new commercial enterprise and which are transported outside the United States.
The commenter also recommended that a designated regional center file an Economic Impact Report, which is required by the Small Business Administration for a licensed Small Business Investment Company (SBIC). Although the Service is interested in obtaining any information on the impact of the Pilot Program, there is no authority in the statute for the Service to require an Economic Impact Report.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule implements the Pilot Program under which a maximum of 300 immigrant visas may be issued annually to alien entrepreneurs and their immediate family members. This rule merely adopts as final, the interim rule w
hich was published at 44606-44610 on August 24, 1993, without any changes.
Executive Order 12866
This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, Section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).
Executive Order 12612
The regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Executive Order 12606
The Commissioner of the Immigration and Naturalization Service certifies that she has addressed this rule in light of the criteria in Executive Order 12606 and has determined that it will have no effect on family well-being.
The information collection requirements contained in this rule have been cleared by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act. The OMB control number for this collection is 1115-0183.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Archives and records, Authority delegations (Government agencies), Bonding, Fees, Forms, Freedom of Information, Organization and functions (Government agencies), Privacy, Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 204
Administrative practice and procedure, Aliens, Employment, Immigration, Petitions.
Accordingly, the interim rule amending 8 CFR parts 103 and 204 which was published at 58 FR 44606-44610 on August 24, 1993, is adopted as a final rule without change.
March 3, 1994
Commissioner,Immigration and Naturalization Service.