[Federal Register Volume 59, Number 73 (Friday, April 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9084]
[[Page Unknown]]
[Federal Register: April 15, 1994]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
