Immigrant Investor Pilot Program

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 204

[INS No. 1609-93]

RIN 1115-AD38

Immigrant Investor Pilot Program

agency: Immigration and Naturalization Service, Justice.

action: Final rule.

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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 set aside 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 immigrant 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.

effective date: 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.

SUPPLEMENTARY 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 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 amended 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 Commissioner 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.

Comments

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 Congress 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 Appropriations 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

through 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 which 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.

Dated: March 3, 1994.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 94-9084 Filed 4-14-94; 8:45 am]

BILLING CODE 4410-10-M