[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3510 Introduced in Senate (IS)]
<DOC>
114th CONGRESS
2d Session
S. 3510
To facilitate the creation of American jobs by immigrant entrepreneurs.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 6, 2016
Mr. Flake introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To facilitate the creation of American jobs by immigrant entrepreneurs.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Attracting and Retaining
Entrepreneurs Act''.
SEC. 2. ENTREPRENEUR NONIMMIGRANT VISAS.
(a) Entrepreneur Nonimmigrant Category.--Section 101(a)(15) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) is amended--
(1) in subparagraph (U)(iii), by striking ``or'' at the
end;
(2) in subparagraph (V)(ii)(II), by striking the period at
the end and inserting ``; or''; and
(3) by adding at the end the following:
``(W) in accordance with the definitions set forth
in section 203(b)(6)(A), a qualified entrepreneur who
has demonstrated that, during the 3-year period ending
on the date on which the alien filed an initial
petition for nonimmigrant status described in this
subparagraph--
``(i) a qualified venture capitalist, a
qualified angel investor, a qualified
government entity, a qualified community
development financial institution, qualified
startup accelerator, or such other type of
entity or investors, as determined by the
Secretary, or any combination of such entities
or investors, has made a qualified investment
or combination of qualified investments of not
less than $100,000 in the alien's United States
business entity; or
``(ii) the alien's United States business
entity--
``(I) has created not fewer than 3
qualified jobs; and
``(II) during the 2-year period
ending on such filing date has
generated not less than $250,000 in
annual revenue arising from business
conducted in the United States.''.
(b) Admission of Entrepreneur Nonimmigrants.--Section 214 of the
Immigration and Nationality Act (8 U.S.C. 1184) is amended--
(1) in subsection (b), by striking ``(other than'' and all
that follows through ``such section)'' and inserting ``(other
than a nonimmigrant described in subparagraph (H)(i)(b),
(H)(i)(c), (L), (V), or (W) of section 101(a)(15))''; and
(2) by adding at the end the following:
``(s) Entrepreneur Nonimmigrant Visas.--
``(1) Definitions.--The definitions set forth in section
203(b)(6)(A) shall apply to this subsection.
``(2) Initial period of authorized admission.--The initial
period of authorized status as a nonimmigrant described in
section 101(a)(15)(W) shall be 3 years.
``(3) Renewal of admission.--Subject to paragraph (4), the
period of authorized nonimmigrant status described in paragraph
(2) may be renewed for additional 3-year periods if--
``(A) during the most recent 3-year period in which
the alien was granted such status, the alien's United
States business entity created not fewer than 3
qualified jobs; and
``(B)(i) during such 3-year period, a qualified
venture capitalist, a qualified angel investor, a
qualified government entity, a qualified community
development financial institution, qualified startup
accelerator, or such other type of entity or investors,
as determined by the Secretary, or any combination of
such entities or investors, has made a qualified
investment or combination of qualified investments of
not less than $250,000 to the alien's United States
business entity; or
``(ii) during the 2-year period ending on the date
on which the alien petitioned for an extension, the
alien's United States business entity has generated not
less than $250,000 in annual revenue arising from
business conducted within the United States.
``(4) Waiver of renewal requirements.--The Secretary may
renew an alien's status as a nonimmigrant described in section
101(a)(15)(W) for not more than 1 year at a time, up to an
aggregate of 2 years, if the alien--
``(A) does not meet the criteria under paragraph
(3); and
``(B) meets the criteria established by the
Secretary, in consultation with the Secretary of
Commerce, for approving renewals under this subsection,
which shall include a determination that--
``(i) the alien has made substantial
progress in meeting such criteria; and
``(ii) such renewal is economically
beneficial to the United States.
``(5) Attestation.--The Secretary shall require an alien
seeking status as a nonimmigrant described in section
101(a)(15)(W) to attest, under penalty of perjury, that the
alien meets the application criteria.
``(6) W-1 visa fee.--In addition to processing fees, the
Secretary shall collect a $1,000 fee from each nonimmigrant
admitted under section 101(a)(15)(W).''.
SEC. 3. ENTREPRENEUR IMMIGRANT VISAS.
Section 203(b) of the Immigration and Nationality Act (8 U.S.C.
1153(b)) is amended--
(1) by redesignating paragraph (6) as paragraph (7); and
(2) by inserting after paragraph (5) the following:
``(6) Entrepreneur immigrants.--
``(A) Definitions.--In this paragraph and in
sections 101(a)(15)(W) and 214(s):
``(i) Qualified angel investor.--The term
`qualified angel investor' means an individual
or organized group of individuals investing
directly or through a legal entity--
``(I) each of whom is an accredited
investor (as defined in section
230.501(a) of title 17, Code of Federal
Regulations, or any similar successor
regulation) investing the funds owned
by such individual or organized group
in a qualified entrepreneur's United
States business entity;
``(II)(aa) if an individual, is a
citizen of the United States or an
alien lawfully admitted for permanent
residence; or
``(bb) if an organized group or
legal entity, a majority of the
individuals investing through such
group or entity are citizens of the
United States or aliens lawfully
admitted for permanent residence; and
``(III) each of whom in the
previous 3 years has made qualified
investments totaling not less than
$50,000 (or such higher amount
determined appropriate by the
Secretary) in United States business
entities that are less than 5 years
old.
``(ii) Qualified community development
financial institution.--The term `qualified
community development financial institution'
means an entity that has been certified by the
CDFI Fund under section 1805.201 45D(c) of
title 12, Code of Federal Regulations, or any
similar successor regulation.
``(iii) Qualified entrepreneur.--The term
`qualified entrepreneur' means an individual
who--
``(I) has a significant ownership
interest, which need not constitute a
majority interest, in a United States
business entity;
``(II) is employed in a senior
executive position at such entity;
``(III) submits a business plan to
U.S. Citizenship and Immigration
Services; and
``(IV) had a substantial role in
the founding or early-stage growth and
development of such entity.
``(iv) Qualified government entity.--The
term `qualified government entity' means an
agency or instrumentality of the United States
or of a State, local, or tribal government.
``(v) Qualified investment.--The term
`qualified investment'--
``(I) means an investment in a
qualified entrepreneur's United States
business entity that is--
``(aa) a purchase from such
entity of equity or convertible
debt issued by such entity;
``(bb) a secured loan;
``(cc) a convertible debt
note;
``(dd) a public securities
offering;
``(ee) a research and
development award from a
qualified government entity to
the United States business
entity;
``(ff) another investment
determined appropriate by the
Secretary; or
``(gg) a combination of any
of the investments described in
items (aa) through (ff); and
``(II) does not include an
investment from--
``(aa) such qualified
entrepreneur;
``(bb) the parents, spouse,
son, or daughter of such
qualified entrepreneur; or
``(cc) any corporation,
company, association, firm,
partnership, society, or joint
stock company over which such
qualified entrepreneur has a
substantial ownership interest.
``(vi) Qualified job.--The term `qualified
job' means a full-time position at a United
States business entity owned by a qualified
entrepreneur that--
``(I) is located in the United
States;
``(II) has been filled for at least
2 years by a United States citizen or
legal permanent resident who is not the
qualified entrepreneur or the spouse,
son, or daughter of the qualified
entrepreneur; and
``(III) is compensated at a wage
level that is commensurate with
similarly situated employees in
comparable positions in the
metropolitan statistical area of the
employment.
``(vii) Qualified startup accelerator.--The
term `qualified startup accelerator' means a
corporation, company, association, firm,
partnership, society, or joint stock company
that--
``(I) is organized under the laws
of the United States or of any State
and conducts business in the United
States;
``(II) in the ordinary course of
business, provides a program of
training, mentorship, and logistical
support to assist entrepreneurs in
growing their businesses;
``(III) is managed by individuals,
the majority of whom are citizens of
the United States or aliens lawfully
admitted for permanent residence;
``(IV)(aa) regularly acquires an
equity interest in companies that
participate in its programs in which
the majority of the capital so invested
is committed from individuals who are
United States citizens or aliens
lawfully admitted for permanent
residence, or from entities organized
under the laws of the United States or
any State; or
``(bb) is an entity that has
received not less than $250,000 in
funding from a qualified government
entity or entities during the previous
5 years and regularly awards grants to
companies that participate in its
programs (in which case, such grant
shall be treated as a qualified
investment for purposes of clause
(iv));
``(V) during the previous 5 years,
has acquired an equity interest in, or,
in the case of an entity described in
subclause (IV)(bb), regularly made
grants to, not fewer than 10 United
States business entities that--
``(aa) have participated in
its programs; and
``(bb)(AA) have each
secured at least $100,000 in
initial investments; or
``(BB) during any 2-year
period following the date of
such acquisition, have
generated not less than
$500,000 in aggregate annual
revenue within the United
States;
``(VI) has its primary location in
the United States; and
``(VII) satisfies such other
criteria as the Secretary may
establish.
``(viii) Qualified venture capitalist.--The
term `qualified venture capitalist' means an
entity that--
``(I)(aa) is a venture capital
operating company (as defined in
section 2510.3-101(d) of title 29, Code
of Federal Regulations or any successor
to such regulation); or
``(bb) has management rights, as
defined in, and to the extent required
by, such section 2510.3-101(d) or
successor regulation, in its portfolio
companies;
``(II) has capital commitments of
not less than $10,000,000; and
``(III) has an investment adviser
that--
``(aa) is registered under
section 203 of the Investment
Advisers Act of 1940 (15 U.S.C.
80b-3);
``(bb) has its primary
office location in the United
States;
``(cc) is directly or
indirectly owned by
individuals, the majority of
whom are citizens of the United
States or aliens lawfully
admitted for permanent
residence in the United States;
``(dd) has been advising
such entity or other similar
funds or entities for at least
2 years; and
``(ee) has advised such
entity or a similar fund or
entity with respect to at least
2 investments of not less than
$500,000 made by such entity or
similar fund or entity during
each of the most recent 2
years.
``(ix) Secretary.--Except as otherwise
specifically provided, the term `Secretary'
means the Secretary of Homeland Security.
``(x) Senior executive position.--The term
`senior executive position' includes the
position of chief executive officer, chief
technology officer, and chief operating
officer.
``(xi) United states business entity.--The
term `United States business entity' means any
corporation, company, association, firm,
partnership, society, or joint stock company
that is organized under the laws of the United
States or any State and that conducts business
in the United States that is not--
``(I) a private fund (as defined in
202(a) of the Investment Advisers Act
of 1940 (15 U.S.C. 80b-2));
``(II) a commodity pool (as defined
in section 1a of the Commodity Exchange
Act (7 U.S.C. 1a));
``(III) an investment company (as
defined in section 3 of the Investment
Company Act of 1940 (15 U.S.C. 80a-3);
or
``(IV) an issuer that would be an
investment company without an exemption
provided in--
``(aa) section 3(c) of the
Investment Company Act of 1940
(15 U.S.C. 80a-3(c)); or
``(bb) section 270.3a-7 of
title 17, Code of Federal
Regulations, or any similar
successor regulation.
``(B) In general.--Not more than 10,000 visas shall
be available during each fiscal year for qualified
immigrants seeking to enter the United States for the
purpose of creating new businesses, as described in
this paragraph.
``(C) Eligibility.--An alien who is a qualified
entrepreneur is eligible for a visa under this
paragraph if--
``(i)(I) the alien maintained valid
nonimmigrant status in the United States for at
least 2 years;
``(II) during the 3-year period ending on
the date the alien files an initial petition
for such status under this section--
``(aa)(AA) the alien has a
significant ownership in a United
States business entity that has created
not fewer than 5 qualified jobs; and
``(BB) a qualified venture
capitalist, a qualified angel investor,
a qualified government entity, a
qualified community development
financial institution, qualified
startup accelerator, or such other
entity or type of investors, as
determined by the Secretary, or any
combination of such entities or
investors, has devoted a qualified
investment or combination of qualified
investments of not less than $500,000
to the alien's United States business
entity; or
``(bb)(AA) the alien has a
significant ownership interest in a
United States business entity that has
created not fewer than 5 qualified
jobs; and
``(BB) during the 2-year period
ending on such petition date, has
generated not less than $500,000 in
annual revenue within the United
States; and
``(III) not more than 2 other aliens have
received nonimmigrant status under this section
on the basis of an alien's ownership of such
United States business entity; or
``(ii)(I) the alien maintained valid
nonimmigrant status in the United States for at
least 3 years before the date on which the
alien filed an application for such status;
``(II) the alien holds an advanced degree
in a field of science, technology, engineering,
or mathematics that has been approved by the
Secretary;
``(III) during the 3-year period ending on
the date on which the alien files an initial
petition for such status under this section--
``(aa)(AA) the alien has a
significant ownership interest in a
United States business entity that has
created not fewer than 4 qualified
jobs; and
``(BB) a qualified venture
capitalist, a qualified angel investor,
a qualified government entity, a
qualified community development
financial institution, qualified
startup accelerator, or such other
entity or type of investors, as
determined by the Secretary, or any
combination of such entities or
investors, has devoted a qualified
investment or combination of qualified
investments of not less than $500,000
in total to the alien's United States
business entity; or
``(bb)(AA) the alien has a
significant ownership interest in a
United States business entity that has
created not fewer than 3 qualified
jobs; and
``(BB) during the 2-year period
ending on such petition date, the
entity has generated not less than
$500,000 in annual revenue within the
United States; and
``(IV) not more than 3 other aliens have
received nonimmigrant status under this
paragraph on the basis of an alien's ownership
of such United States business entity.
``(D) New business plan requirement.--
``(i) In general.--A qualified entrepreneur
shall submit a new business plan to U.S.
Citizenship and Immigration Services if there
has been a material change to the business plan
referred to in subparagraph (A)(ii)(III).
``(ii) Presumption.--There shall be a
presumption in favor of approval for any new
business plan submitted pursuant to clause (i).
``(E) Attestation.--The Secretary may require an
alien seeking a visa under this paragraph to attest,
under penalties of perjury, to the alien's
qualifications.''.
SEC. 4. ADMINISTRATION AND OVERSIGHT.
(a) Rulemaking.--
(1) In general.--Not later than 16 months after the date of
the enactment of this Act, the Secretary of Homeland Security,
in consultation with the Secretary of Commerce, the
Administrator of the Small Business Administration, and heads
of other relevant Federal agencies and departments, shall
promulgate regulations--
(A) to carry out the amendments made by this Act;
and
(B) to ensure that such amendments are implemented
in a manner that is consistent with--
(i) the protection of national security;
and
(ii) the promotion of United States
economic growth, job creation, and
competitiveness.
(2) Modification of dollar amounts.--
(A) In general.--The Secretary of Homeland Security
may prescribe regulations that increase or decrease any
dollar amount specified in--
(i) section 101(a)(15)(W) of the
Immigration and Nationality Act, as added by
section 2(a);
(ii) section 214(s) of such Act, as added
by section 2(b); or
(iii) section 203(b)(6) of such Act, as
added by section 3.
(B) Automatic adjustment.--Unless a dollar amount
referred to in subparagraph (A) relating to a petition
for a nonimmigrant visa under section 101(a)(15)(W) of
the Immigration and Nationality Act or an immigrant
visa under section 203(b)(6) of such Act is adjusted by
the Secretary of Homeland Security pursuant to such
subparagraph, such dollar amount shall automatically
adjust--
(i) on January 1, 2021, by the percentage
change in the Consumer Price Index (CPI-U)
during fiscal year 2020; and
(ii) on every fifth subsequent January 1 by
the percentage change in the CPI-U during the
previous 5 fiscal years.
(b) Other Authority.--The Secretary of Homeland Security, in the
Secretary's unreviewable discretion, may deny or revoke the approval of
a petition seeking an immigrant visa under section 203(b)(6) of the
Immigration and Nationality Act, as added by section 3, or any other
petition, application, or benefit based upon the previous or concurrent
filing or approval of a petition for classification of an alien under
such section, if the Secretary determines that the approval or
continuation of such petition, application, or benefit is contrary to
the national interest of the United States or for other good cause.
(c) Reports.--Once every 3 years, the Secretary of Homeland
Security shall submit a report to Congress that includes--
(1) a description of the implementation of this Act and the
amendments made by this Act;
(2) the number and percentage of entrepreneurs who have met
the thresholds for nonimmigrant renewal and adjustment to green
card status under the amendments made by this Act;
(3) an analysis of the program's economic impact,
including--
(A) job and revenue creation;
(B) increased investments; and
(C) growth within business sectors and regions;
(4) a description and breakdown of the types of businesses
that have been created by entrepreneurs granted nonimmigrant or
immigrant status;
(5) for each report other than the Secretary's initial
report, a description of the percentage of the businesses
initially created by the entrepreneurs granted immigrant and
nonimmigrant status under this Act and the amendments made by
this Act, that are still in operation; and
(6) any recommendations for improving the program
established under this Act and the amendments made by this Act.
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