Loading...
Item O10 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY TIME APPROXIMATE REQUESTED Meeting Date: Wed. August 20, 2008 Division: BOCC Bulk Item: Yes No XX Depaliment: Mayor Di Gennaro, District 4 Staff Contact Person: Tamara Lundstrom (305 289-6000) AGENDA ITEM WORDING: Discussion and approval of a Board approved letter of support for application by EB5 Capital Partners, LLC for Regional Center Designation for the South Florida Investment Regional Center serving Miami-Dade and Monroe Counties, under the provisions of the U.S. Inunigration Investor Program as authorized by the 1990 U.S. Immigration Act. ITEM BACKGROUND: Under the U.S. Immigration Act of 1990, the U.S. Immigrant Investor Program was initiated. The Act provides for the issuance of conditional or temporary two-year green cards to qualifying investors and their families investing in business ventures that create full-time jobs for U.S. workers. In 1993, a pilot program was established under which "regional centers" designated by the Immigration and Naturalization Service (INS), now the U.S. Citizenship and Immigration Service (USCIS), could be established. There are currently no regional centers for this program in Florida. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: TOT AL COST: BUDGETED: Yes No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH_ Year APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management_ DOCUMENT A TION: Included XX Not Required_ DISPOSITION: AGENDA ITEM # Revised 2/05 O,y,~rY ~o~~~",~E (305) 294-4641 BOARD OF COUNTY COMMISSIONERS Mayor Mario Di Gennaro, District 4 Mayor Pro Tem Charles "Sonny" McCoy, District 3 Dixie M. Spehar, District 1 George Neugent, District 2 Sylvia J. Murphy, District 5 Mayor Mario Di Gennaro District 4 Commission Office 9400 Overseas H wy. Ste. 210 Florida Keys Marathon Airport Tenninal Marathon, FL 33050 PH: 305289-6000 FX: 305 289-6306 Email: boccdis4(cunonHlecounty- fl. gov August 20, 2008 Mr. MOITie Ben~z uscrs Foreign Trader, Investor and Regional Center Program Service Center Operations Business and Trade Services 20 Massachusetts Avenue, NW Washington, DC 20529 RE: Application for Regional Center Designation for the South Florida Investment Regional Center Dear Mr. Berez: The Monroe County Board of County Commissioners have recently seen a presentation by the principals ofEB5 Capital Partners, LLC who have provided details of their intentions to create an immigrant investor regional center pursuant to the EB5 classification created in 1991, known as the alien entrepreneur investor category. The South Florida Investment Regional Center will attract foreign investment, which will be utilized to promote economic growth in Miami-Dade and Monroe Counties, including the creation of jobs, increased export sales, and increased domestic capital investment. Monroe County is considered a destination of choice in this hemisphere. The County's privileged geographic location, transportation services - air, sea and land, vast natural beauty, and most importantly, a talented and diverse workforce allow our community to shine as a venue for foreign investment. Our unique status has made our community a global destination and for all these reasons, foreign investors will find abundant opportunity in Monroe County. In addition, foreign investment will not only help us grow but \-vill support important economic development to areas most in need. We welcome the South Florida Investment Regional Center (SFIRC) and look forward to working with them in any manner possible so as to assist tbem in achieving their goals. Sincerely, Mario Di Gennaro Mayor CC: J. Eric Gould, EB5 CapiUlI Partners, LLC Ileana Ros-Lehtnen, U.S. Congressional Rep.. Oist. 18 Sen. Mel Martinez, U,S. Senate-FL Sen. Bill Nelson, U.S. Senate-FL Gov. Charlie Crist, FL Sen. Larcenia Bullard, FL Senate, Dist. 39 Rep. Ron Saunders, FL House, Disl. 120 MEMORANDUM FROM: J. Eric Gould, EB5 CapitaJ Partners, LLC TO: Mayor Mario Di Gennaro, Monroe County DATE: July 27, 2008 EB5 CAPITAL PARTNERS, LLC / THE SOUTH FLORIDA INVESTMENT REGIONAL CENTER Introduction Several countries have developed immigrant investor programs, which offer permanent residency visas or green cards to qualified investors. The most prominent countries that have developed such programs are Canada, Australia, the United Kingdom and the United States. The U.S. immigrant investor program provides for the issuance of "conditional" or temporary (two year) green cards to qualifying investors and their families who invest a minimum of US $1 million (US$500,OOO in designated target areas) in husinesses that create at least ten full-time permanent jobs for U.S. workers. Provided that the investment is maintained and achieves the job requirements of the Program, "unconditional" or permanent green cards will be issued after two years. The U.S. immigrant investor program, which grants an EB-5 investor visa, was introduced in 1990 pursuant to the Immigration Act of 1990 and attracted a relatively small number of immigrants. In 1993, the U.S. government modified its 1990 immigrant investor program. It retained the 1990 regulations, but established a Pilot Program under which "regional centers" designated by thc Immigration and Nahlralization Service (INS), now the U.S. Citizenship and Immigration Service (USCIS), could be established. In a regional center, the job creation requirements are more flexible and "passive" investment opportunities (via limited partnerships) for a substantial number of potentlal pooled immigrant investors are created. Regional centers have been allotted 5,000 of the total 10,000 EB-5 visas available through the U.S. immigrant investor program on an annual basis. EB5 Capital Partners, LLC and the South Florida Investment Regional Center EB5 Capital Partners, LLC is a South Florida based company cun-ently in the process of completing an application to submit to USClS for the approval and designation of the South Florida Investment Rcgional Center as regional center under the U.S. immigrant investor program. Upon approval of US CIS, the South Florida Investment Regional Center will be able to attract multiple foreign investors into economic development projects. EB5 Capital Partners is requesting that the geographical boundaries of the South Florida Investment Regional Center be all of Miami-Dade and Monroe Counties. EB5 Capital Partners anticipates that economic development investment projects will take place within both counties. Advantages of the South Florida Investment Regional Center There are approximately seventeen regional centers in the U.S. at this time. Surprisingly. there are eUlTently none in Florida. Miami-Dade and Monroe Counties in particular, lends itself as an almost perfect forum for an EB-5 investor. Beyond Dade and Monroe's appeal as an excellent location for foreign investment, many of the EB-5 investors would be interested in not only making these EB-5 investments in the area, but also visiting and potentially living in the area. A potential immigrant investor seeking an EB-5 investor visa has certain advantages by applying through a regional center such as the South Florida Investment Regional Center. For instance, if an immigrant investor were to apply for an EB-5 investor visa independently, he or she would have to invest a minimum of US$l ,000,000; however, ifhe or she applies through the South Florida Investment Regional Center, the minimum investment is only US$500,000 because the investmcnt would be located in an approved target employment area or rural areas, which include all of Monroe County except for Key West. Moreover, the South Florida Investment Regional Center pools multiple investors together in one project, which means the project itself will be larger and financially more stable than one individual investing in a project alone. Current plans call for the economic development investment projects to be located within Miami-Dade and Monroe Counties and range across a number of industry sectors, including hotel and tourism development, manufacturing companies, professional firms, restaurants, and major real estate developments, among others. During the lifetime of the investment, the South Florida Investment Regional Center remains in communication with each immigrant investor. All investors in the South Florida Investment Regional Center receive periodic reports regarding the status of the investment, job creation data based on reports from the Regional Center, the local economy, and other relevant project information. Job Creation and Positive Economic Development through the South Florida Investment Regional Center One of the most important advantages for immigrant investors applying for an EB-5 investor visa through a regional center such as the South Florida Investment Regional center is that they may satisfy the Program's job creation requirements by counting not only direct jobs created as a result of his or her investment, but also indirect jobs created in related indusb'ies as a result of the investment within the geographic boundaries of the Regional Center. Regional centers are able to calculate indirect job creation through the use of approved input-output employment modeling systems. As required by the USCIS Pilot Program rules, the South Florida Investment Regional Center's projects will provide job creation - which means that all of the Regional Center's projects create full-time jobs. Each project is required to provide a detailed job creation forecast based on a business plan specifying its employment needs, which are then carefully reviewed and evaluated by the South Florida Investment Regional Center. Throughout the life of the project, these direct jobs are closely monitored by the Regional Center. Advantages for Dade and Monroe Counties There are numerous advantages and positive impacts of having a robust and active regional center in South Florida and attracting global foreign investment. The Regional Center is an excellent economic development program that does not require government funding or involvement. Qualified foreign investors will be making substantial investments in areas of Monroe County. The projects they are investing in will produce new jobs, which will be substantiated by well-respected economic models and reports, which are produced by the Regional Center. Finally, foreign investors who invest in the South Florida Investment Regional Center will be encouraged to visit South Florida, see their investments at work and enjoy the beautiful environment Miami-Dade and Monroe Counties have to offer. Thus, boosting tOUlism and encouraging further economic investments in the community, including personal real estate acquisitions, such as housing. Conclusion As part of the application EB5 Capital Partners is submitting to USCTS for designation of the South Florida Investment Regional Center, it would be beneficial to include letters of support from municipal authorities within the designated geographical limits of the proposed regional center. Because of the importance and opportunity involved with the potential of establishing an immigrant investor regional center in Monroe County, we believe that your support, through a letter of recommendation, would greatly enhance the stature of the application. While the support of municipal authorities is not required by the USCIS regional center regulations, EB5 Capital Partners believes that the your support is an important factor in signaling that the community embraces such an economic development program. ATLANTIC ~LDINGS, LLC JUL Y 22, 2008 BBS Capital Partners LLC David J. Hart 801 Brickell Avenue Suite 900 Miami, FL 33131 REF: The South Florida Investment Regional Cente.! Dear David: As discussed last week this will confum that we are most interested in your proposal to provide financing through your EB5 Regional Center for our resort concept in the Monroe County (Keys). We understand that your regional center application wiD be submitted shortly and that we are not able to proceed until such time as Regional Center designation has been achieved. We are interested in acquiring a parcel of land that was previously (or still is) a hotel/motel site with water frontage and existing amenities. In due course we would seek to renovate and thereafter locate approximately 25 bungalow style cottages. We have two existing projects already open to the public here in Maine and feel that a similar concept in the Keys would work very well. Please keep us posted on your progress and we look forwm-d to working with you through your EB5 Regional Center, as soon as it is feasible. SinAjrely, " r~ngton President 62 PORTLAND ROAD. SUITE 5, KeNNEBUNJ.<, MAINE 04043 . TBLEFIiONE 207.9855132 FAUihYlILE 207.985.5136 Crmfidel1lia/ ATLANTIC HOLDINGS, LLC- PROPOSED PROJECT MONROE COUNTY Atlantic Holdings proposes to cooperate with the South Florida Investment Regional Center (SFIRC) to finance a 25 bungalow style resort in the upper to mid Keys. Attached is a preliminary 2 page Project Costs Pro-Forma 711810B 25 Cottages Land 4,500,000,00 Closing Costs 40,00000 Applications & Permits 50,00000 Englneenng 175,00000 Legal 50,00000 Acquisition 4,815,000,00 Costs Site Development Sitework (Includes allowance for 1,500,00000 septic) Pre Treatment Tanks 50,00000 Silework Contingancy 10% 150,00000 Landscaping 250,000,00 Engineering 95,000,00 Total Site Development 2,045,000.00 Common Area Lodge 300,00000 Pool 60,000 00 Landscaping 130,00000 Pump House & Filler 70,000,00 Furnishings & Equipment 100,000,00 Tennis 50,00000 AudiO System 15,00000 Outside Furniture 25,00000 Total Common Area 750,000.00 Spa Building Building 200,000.00 Landscaping 50.000,00 Equipment 10,00000 Total Maintenance Area 77,000.00 Unit Area Cottages 4500000 Furnishing @$20,000 ea 500000 Landscaping 400000 Appliances 145000 Total Unit Area 5,545.000.00 Otl1er Startup Costs Marketlngl PubliC Relations 50000 Designer Showcase 75000 - 0 Permits & Legal Financing Costs TOTAL PROJECT COST Hotel Supplies BrandlWeb Development Total Other Startup Costs 50000 40000 215000 50,000.00 840.000.00 14,337,000.00 Immigrant Investor Pilot Program [59 FR 17920 - 1792l][FR 24-94] Page 1 of6 Immigrant Investor Pilot Program [59 FR 17920 - 17921] [FR 24-94] DOCUMENT NUMBER: FR 24-94 FEDERAL REGISTER CITE: 59 FR 17920 - 17921 DATE PUBLISHED: April 15, 1994 BILLING CODE: 4410-10 DEPARTMENT OF JUSTICE Immigration and Naturalization Scrvice H CFR Parts 103 and 204 [INS No. 1609-93] RIN 1ll5-AD38 Immigrant Investor Pilot Program AGENCY: Immigration and Naturalization Service, Justice. ACTION: Final rule. SUMMARY: 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 implcment 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 thc Unitcd States for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased hUp:llwww. uscis.gov/propub/Doc View /fridl 1 12/51 /7 4 7/2812008 Immigrant Investor Pilot Program [59 FR 17920 - 17921][FR 24-94] Page 2 of6 domestic capital investment. EFFECTIVE DATE: April 15, 1994. FOR FURTHER INFORMA TION 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. SUPPLEMENT ARY INFORMATION: On August 24, 1993, the Acting Commissioner of the Immigration and Naturalization Service (the "Service") published in the Federal Register 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 '-. \L under section 203(b)(5) of the Act who make a qualifying investment within a designated r- 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 detennine 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 204.60)( 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. g CFR ,~ 204.6(m) sets forth five criteria for adjudicating regional center designation proposals. Under this f interim regulation, the Assistant Commiss ioner for Adjudica60ns 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 cormnent on the interim regulation. The Service received one comment. Comments http://www . uscis.gov /propu bIDoc View /frid/ 1 /2/51/7 4 7/28/2008 Immigrant Investor Pilot Program [59 FR 17920 - 17921 ][FR 24-94] Page 5 0[6 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. Signed March 3, 1994 Doris Meissner, Commissioner, Immigration and Naturalization Servi ceo Dated: http://www . uscis.gov/propub/Doc View/frid/l/2/51174 7/28/2008 INA: ACT 203 - ALLOCATION OF IMMIGRANT VISAS Page 1 of 6 20 3(vj(5) c{(c ) l~;\: ACT 203 - .\LLOCATlON OF I!\1]VIIGRANT VISAS Sec. 203. [8 U.S.C. 1153] (a) Preference Allocation for Family-Sponsored Immigrants. - Aliens subject to the worldwide level specified in section 201(c) for family-sponsored immigrants shall be allotted visas as follows: (1) Unmarried sons and daughters of citizens. - Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400, plus any visas not required for the class specified in paragraph (4). (2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens. - Qualified 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. - Qualified immigrants who are the married sons or married daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400, plus any visas not required for the classes specified in paragraphs (1) and (2). (4) Brothers and sisters of citizens. - Qualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas in a number not to exceed 65,000, plus any visas not required for the classes specified in paragraphs (1) through (3). /::'." \.i9J'Preference Allocation for Employment-Based Immigrants. - Aliens subject to the worldwide level specified in section 201 (d) for employment-based immigrants in a fiscal year shall be allotted visas as follows: (1) Priority workers. - Visas 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 ability. - An 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 http://www.uscis.gov/propub/DocView/slbid/1 /2/15?hilite= 7/28/2008 INA: ACT 203 - ALLOCATION OF IMMIGRANT VISAS Page 4 of6 or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. (ii) Professionals. - Qualified immigrants who hold baccalaureate degrees and who are members of the professions. (iii) Other workers. - Other Qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. (B) Limitation on other workers. - Not more than 10,000 of the visas made available under this paragraph in any fiscal year may be available for qualified immigrants described in subparagraph (A)(iii). (C) Labor certification required.- An immigrant visa may not be issued to an immigrant under subparagraph (A) until the consular officer is in receipt of a determination made by the Secretary of labor pursuant to the provisions of section 212(a)(5)(A) . (4) Certain special immigrants. - Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified special immigrants described in section 101 (a) (27) (other than those described in subparagraph (A) or (B) thereof), of which not more than 5,000 may be made available in any fiscal year to special immigrants described in subclause (11) or (III) of section 101(a)(27)(C)(ii) , 2/ and not more than 100 may be made available in any fiscal year to special immigrants, excluding spouses and children, who are described in section 101(a)(27)(M) . ~mPIOyment creation. - (A) In general. - Visas 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 4/ enterprise (including a limited partnership)-- (i) 4/ in which such alien has invested (after the date of the enactment of the Immigration Act of 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and (ii) 4/ which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully ad mitted 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). (8) Set-aside for targeted employment areas.- (i) In general. - Not less than 3,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who 4/ invest in a new commercial enterprise described in subparagraph (A) which will create employment in a targeted employment area. (ii) Targeted employment area defined. - In this paragraph, the term "targeted employment area" means, at the time of the investment, a rural area or an area which has http://www.uscis.gov/propub/DocView/slbidll!2/15?hllite= 7/28/2008 INA: ACT 203 - ALLOCA nON OF IMMIGRANT VISAS Page 5 0[6 experienced high unemployment (of at least 150 percent of the national average rate). (iii) Rural area defined. - In this paragraph, the term "rural area" means any area other than an area within a metropolitan statistical area or within the outer boundary of any city or town having a population of 20,000 or more (based on the most recent decennial census of the United States). @mountofcaPital required. - (i) In general. - Except as otherwise provided in this subparagraph, the amount of capital required under subparagraph (A) shall be $1,000,000. The Attorney General, in consultation with the Secretary of Labor and the Secretary of State, may from time to time prescribe regulations increasing the dollar amount specified under the previous sentence. (ii) Adjustment for targeted employment areas.- The Attorney General may, in the case of investment made in a targeted employment area, specify an amount of capital required under subparagraph (A) that is less than (but not less than 1/2 of) the amount specified in clause (i). (iii) Adjustment for high employment areas.-In 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 Attorney General 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). (D) 4/ Full-time employment defined.--In this paragraph, the term 'full-time employment' means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position. (6) Special rules for "k" special immigrants. - (A) Not counted against numerical limitation in year involved. - Subject to subparagraph (B), the number of immigrant visas made available to special immigrants under section 101 (a) (27)(K) in a fiscal year shall not be subject to the numerical limitations of this subsection or of section 202(a). (B) Counted against numerical limitations in following year.- (i) Reduction in employment-based immigrant classifications. - The number of visas made available in any fiscal year under paragraphs (1), (2), and (3) shall each be reduced by 1/3 of the number of visas made available in the previous fiscal year to special immigrants described in section 101 (a)(27)(K) . (ii) Reduction in per country level. - The number of visas made available in each fiscal year to natives of a foreign state under section 202(a) shall be reduced by the number of visas made available in the previous fiscal year to special immigrants described in section 101 (a)(27) (K) who are natives of the foreign state. (iii) Reduction in employment-based immigrant classifications within per country ceiling. - In the case of a foreign state subject to section 202(e) in a fiscal year (and in the previous http://www . uscis.gov/propub/Doc View /slbid/1 /2/15?hilite= 7/28/2008 Sec. 204.6 Petitions for employment creation aliens. Page 1 of 10 Sec. 204.6 Petitions for employment creation aliens. (a) General. A petition to classify an alien under section 203(b)(5) of the Act must be filed on Form 1-526, Immigrant Petition by Alien Entrepreneur. The petition must be accompanied by the appropriate fee. Before a petition is considered properly filed, the petition must be signed by the petitioner, and the initial supporting documentation required by this section must be attached. Legible photocopies of supporting documents will ordinarily be acceptable for initial filing and approval. However,at the discretion of the director, original documents may be required. (b) Jurisdiction. The petition must be filed with the Service Center having jurisdiction over the area in which the new commercial enterprise is or will be principally doing business. (c) Eligibility to file. A petition for classification as an alien entrepreneur may only be filed by any alien on his or her own behalf. (d) Priority date. The priority date of a petition for classification as an alien entrepreneur is the date the petition is properly filed with the Service or, if filed prior to the effective date of these regulations, the date the Form 1-526 was received at the appropriate Service Center. (e) Definitions. As used in this section: Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activit ies) shall not be considered capital for the purposes of section 203(b)(5) of the Act. Commercial enterprise means any for.profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly-owned subsidiaries, proVided that each such subsidiary is engaged in a tor-profit activity formed for the ongoing conduc t of a lawful business. This definition shall not include a noncommercial activity such as owning and operating a personal residence. Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. In the case of the Immigrant Investor Pilot Program, "employee" also means an individual who http://www . uscis.gov /propub/Doc View / slbi d/ 1/209/266/2 7 6 7/28/2008 Sec. 204.6 Petitions for employment creation aliens. Page 2 of 10 provides selVices or labor in a job which has been created indirectly through investment in the new commercial enterprise. This definition shall not include independent contractors. Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, "full-time employment" also means employment of a qualifying employee in a position that llas been created indirectly through revenues generated from increased exports resulting from the Pilot Program that requires a minimum of 35 working hours per week. A job-sharing arrangement whereby two or more qualifying emp loyees share a full- time position shall count as full-time employment provided the hourly requirement per week is met. This definition shall not include combinations of part-time positions even if, when combined, such positions meet the hourly requirement per week. High employment area means a part of a metropolitan statistical area that at the time of investment: (i) Is not a targeted employment area; and (il) Is an area with an unemployment rate significantly below the national average unemployment rate. Invest means to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur and the new commercial enterprise does not constitute a contribution of capital for the purposes of this part. New means established after November 29, 1990. Qualifying employee means a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation. ThiS definition does not include the alien entrepreneur, the alien entrepreneur's spouse, sons, or daughters, or any nonimmigrant alien. Regional center means any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, http://www . uscis. gOY /propub/Doc Vi ew 1 slbid/1/209/266/2 7 6 7/28/2008 Sec. 204.6 Petitions for employment creation aliens. Page 3 of 10 and increased domestic capital investment. Rural area means any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more. Targeted employment area means an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate. Troubled business means a business that has been in existence for at least two years, has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the twelve or twenty-four month period prior to the priority date on the alien entrepreneur's Form 1-526, and the loss for such period is at least equal to twenty per cent of the troubled business's net worth prior to such loss. For purposes of determining whether or not the troubled business has been in existence fa r two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded. (f) Required amounts of capital. ~ (1) General. Unless otherwise specified, the amount of capital necessary to make a 7- qualifying investment in the United States is one million United States dollars ($1,000,000). 1 (2) Targeted employment area. The amount of capital necessary to make a qualifying investment in a targeted employment area within the United States is five hundred thousand United States dollars ($500,000). (3) High employment area. The amount of capital necessary to make a qualifying investment in a high employment area within the United States, as defined in section 203(b)(5) (C)(iii) of the Act, is one million United States dollars ($1,000,000). (g) Multiple investors -- (1) GeneraL The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur by more than one investor, provided each petitioning investor has invested or is actively in the process of investing the required amount for the area in which the new commercial enterprise is principally doing business, and provided each individual investment results in the creation of at least ten full-time positions for qualifying employees. The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur even though there are several owners of the http://www . uscis.gov /propub/Doc Vi ew / slbid/l/209/2 66/2 76 7/28/2008 - Sec. 204.6 Petitions for employment creation aliens. Page 6 of 10 (IV) Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder's request; or (v) Evidence of any loan or mortgage agreement, promissory note, security agreement. or other evidence of borrowing which is secured by assets of the petitioner, other than those of the new commercial enterprise, and for which the petitioner is personally and primarily liable. (3) To show that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means. the petition must be accompanied, as applicable, by: (i) Foreign business registration records; (ii) Corporate, partnership (or any other entity in any form which has filed in any country or subdivision thereof any return described in this subpart), and personal tax returns including income, franchise, property (whether real. personal, or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner; (Hi) Evidence identifying any other source(s) of capital; or (iv) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past fifteen years. (4) Job creation -- sf (i) General. To show that a new commercial enterprise will create not fewer than ten (10) full-time positions for qualifying employees, the petition must be accompanied by: (A) Documentation consisting of photocopies of relevant tax records, Forms 1-9, or other similar documents for ten (10) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or (8) A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired. (ii) Troubled business. To show that a new commercial enterprise which has been established through a capital investment in a troubled business meets the statutory employment creation requirement, the petition must be accompanied by eVIdence that the number of existing http://www . uscis.gov /propub/Doc View /slbid/ 1/209/266/276 7/28/2008 Sec. 204.6 Petitions for employment creation aliens. Page 7 of 10 employees is being or will be maintained at no less than the pre-investment level for a period of at least two years. Photocopies of tax records, Forms /-9, or other relevant documents for the qualifying employees and a comprehensive business p Ian shall be submitted in support of the petition. * (iii) Immigrant Investor Pilot Program. To show that the new commercial enterprise located within a regional center approved for participation in the Immigrant Investor Pilot Program meets the statutory employment creation requirement, the petition must be accompanied by evidence that the investment will create full-time positions for not fewer than 10 persons either directly or indirectly through revenues generated from increased exports resulting from the Pilot Program. Such evidence may be demonstrated by reasonable methodologies including those set forth in paragraph (m)(3) of this section. (5) To show that the petitioner is or will be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial control or through policy formulation, as opposed to maintaining a purely passive role in regard to the investment, the petition must be accompanied by: (i) A statement of the position title that the petitioner has or will have in the new enterprise and a complete description of the position's duties; (ii) Evidence that the petitioner is a corporate officer or a member of the corporate board of directors; or (iii) If the new enterprise is a partnership, either limited or general, evidence that the petitioner is engaged in either direct management or policy making activities. For purposes of this section, if the petitioner is a limited partner and the limited partnership agreement provides the petitioner with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the petitioner will be considered sufficiently engaged in the management of the new commercial enterprise. (6) If applicable, to show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by: (i) In the case of a rural area, evidence that the new commercial enterprise is prinCipally doing business within a civil jurisdiction not located within any standard metropolitan statistical area as designated by the Office of Management and Budget, or within any city or town having a population of 20,000 or more as based on the most recent decennial census of the United States; or (ii) In the case of a high unemployment area: (A) Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150 percent of the national average rate: or http://www . uscis.gov/propub/Doc View /slbid!l /209/266/276 7128/2008 Sec. 204.6 Petitions for employment creation aliens. Page 8 of 10 (B) A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR 204.6(i) . (k) Decision. The petitioner will be notified of the decision. and, jf the petition is denied, of the reasons for the denial and of the petitioner's right of appeal to the Associate Commissioner for Examinations in accordance with the provisions of part 103 of this chapter. The decision must specify whether or not the new commercial enterprise is principally doing business within a targeted employment area. (I) Disposition of approved petition. The approved petition will be forwarded to the United States consulate selected by the petitioner and indicated on the petition. If a consulate has not been designated, the petition will be forwarded to the consulate having jurisdiction over the place of the petitioner's last residence abroad. If the petitioner is eligible for adjustment of status to conditional permanent residence, and if the petition indicates that the petitioner intends to apply for such adjustment, the approved petition will be retained by the Service for consideration in conjunction with the application for adjustment of status. (m) Immigrant Investor Pilot Program. (1) Scope. The Immigrant Investor Pilot Program is established solely pursuant to the provisions of section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, and subject to all conditions and restrictions stipulated in that section. Except as provided herein, aliens seeking to obtain immigration benefits under this paragraph continue to be subject to all conditions and restrictions set forth in section 203(b) (5) of the Act and this section. (2) Number of immigrant visas allocated. The annual allocation of the visas available under the Immigrant Investor Pilot Program is set at 300 for each of the five fiscal years commencing on October 1, 1993. (3) Requirements for regional centers. Each regional center wishing to participate in the Immigrant Investor Pilot Program shall submit a proposal to the Assistant Commissioner for Adjudications, which: (i) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment; (ii) Provides in verifiable detail how jobs will be created indirectly through increased exports: http://www ,uscis.gov/propubfDoc View /slbid/11209/266/276 7/28/2008 Sec. 204.6 Petitions for employment creation aliens. Page 9 of 10 (iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center; (iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and (v) Is supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables. (4) Submission of proposals to participate in the Immigrant Investor Pilot Program. On August 24, 1993, the Service will accept proposals from regional centers seeking approval to participate in the Immigrant Investor Pilot Program. Regional centers that have been approved by the Assistant Commissioner for Adjudications will be eligible to participate in the Immigrant Investor Pilot Program. (5) Decision to participate in the Immigrant Investor Pilot Program. The Assistant Commissioner for Aqjudications shall notify the regional center of his or her decision on the request for approval to participate in the Immigrant Investor Pilot Program, and, if the petition is denied, of the reasons for the denial and of the regional center's right of appeal to the Associate Commissioner for Examinations. Notification of denial and appeal rights, and the procedure for appeal shall be the same as those contai ned in 8 CFR 103.3. (6) Termination of partiCipation of regional centers. To ensure that regional centers continue to meet the requirements of section 61 O( a) of the Appropriations Act, the Assistant Commissioner for Adjudications shall issue a notice of intent to terminate the participation of a regional center in the pilot program upon a determination that the regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. The notice of intent to terminate shall be made upon notice to the regional center and shall set forth the reasons for termination. The regional center must be provided thirty days from receipt of the notice of intent to terminate to offer evidence in opposition to the ground or grounds alleged in the notice of intent to terminate. If the Assistant Commissioner for Adjudications determines that the regional center's participation in the Pilot Program should be terminated, the Assistant Commissioner for Adjudications shall notify the regional center of the decision and of the reasons for termination. The regional center may appeal the decision within thirty days after the service of notice to the Associate Commissioner for Examinations as provided in 8 CFR 103.3 . (7) Requirements for alien entrepreneurs. An alien seeking an immigrant visa as an alien entrepreneur under the Immigrant Investor Pilot Program must demonstrate that his or her qualifying investment is within a regional center approved pursuant to paragraph (m)( 4) of this section and that such investment will create jobs indirectly through revenues generated from increased exports resulting from the new commercial enterprise. (i) Exports. For purposes of this paragraph (m) of this section, the term "exports" means http://www . uscis.gov /propub/Doc View /slbid/ 1 /209/266/2 76 7/28/2008 Sec. 204.6 Petitions for employment creation aliens. Page 10 of 10 services or goods which are produced directly or indirectly through revenues generated from a new commercial enterprise and which are transported out of the United States; (ii) Indirect job creation. To show that 10 or more jobs are actually created indirectly by the business, reasonable methodologies may be used. Such methodologies may Include multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting devices which indicate the likelihood that the business will result in increased employment. (8) Time for submission of petitions for classification as an alien entrepreneur under the Immigrant Investor Pilot Program. Commencing on October 1, 1993, petitions will be accepted for filing and adjudicated in accordance with the provisions of this section if the alien entrepreneur has invested or is actively in the process of investing within a regional center which has been approved by the Service for participation in the Pilot Program, (9) Effect of termination of approval of regional center to participate In the Immigrant Investor Pilot Program. Upon termination of approval of a regional center to participate in the Immigrant Investor Pilot Program, the director shall send a formal written notice to any alien within the regional center who has been granted lawful permanent residence on a conditional basis under the Pilot Program, and who has not yet removed the conditional basis of such lawful permanent residence, of the termination of the alien's permanent resident status, unless the alien can establish continued eligibility for alien entrepreneur classification under section 203(b) (5) of the Act. http://www . uscis. gov/propub/Doc View / slbid/ 1 /209/266/276 7/28/2008