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full-time position shall count as full- accounting purposes (determined on time employment provided the hourly the basis of generally accepted acrequirement per week is met. This defi- counting principles) during the twelvenition shall not include combinations or twenty-four month period prior to of part-time positions even if, when the priority date on the alien entrecombined, such positions meet the preneur's Form 1-526, and the loss for hourly requirement per week.

such period is at least equal to twenty High employment area means a part of percent of the troubled business's net a metropolitan statistical area that at

worth prior to such loss. For purposes the time of investment:

of determining whether or not the (i) Is not a targeted employment troubled business has been in existence area; and

for two years, successors in interest to (ii) Is an area with an unemployment the troubled business will be deemed to rate significantly below the national have been in existence for the same peaverage unemployment rates.

riod of time as the business they sucInvest means to contribute capital. A ceeded. contribution of capital in exchange for

(f) Required amounts of capital. (1) a note, bond, convertible debt, obliga

General. Unless otherwise specified, the tion, or any other debt arrangement

amount of capital necessary to make a between the alien entrepreneur and the

qualifying investment in the United new commercial enterprise does not

States is one million United States dolconstitute a contribution of capital for

lars ($1,000,000). the purposes of this part.

(2) Targeted employment area. The New means established after Novem

amount of capital necessary to make a ber 29, 1990.

qualifying investment in a targeted Qualifying employee means a United States citizen, a lawfully admitted per

employment area within the United

States is five hundred thousand United manent resident, or other immigrant

States dollars ($500,000). lawfully authorized to be employed in the United States including, but not

(3) High employment area. The amount limited to, a conditional resident, a

of capital necessary to make a qualitemporary resident, an asylee, a ref

fying investment in a high employment ugee, or an alien remaining in the

area within the United States, as deUnited States under suspension of de

fined in section 203(b)(5)(C)(iii) of the portation. This definition does not in

Act, is one million United States dolclude the alien entrepreneur, the alien

lars ($1,000,000). entrepreneur's spouse, sons, or daugh

(g) Multiple investors—(1) General. The ters, or any nonimmigrant alien.

establishment of a new commercial enRegional center means any economic terprise may be used as the basis of a unit, public or private, which is in

petition for classification as an alien volved with the promotion of economic

entrepreneur by more than one invesgrowth, including increased export tor, provided each petitioning investor sales, improved regional productivity,

has invested or is actively in the procjob creation, and increased domestic ess of investing the required amount capital investment.

for the area in which the new commerRural area means any area not within cial enterprise is principally doing either a metropolitan statistical area business, and provided each individual (as designated by the Office of Manage- investment results in the creation of at ment and Budget) or the outer bound- least ten full-time positions for qualiary of any city or town having a popu- fying employees. The establishment of lation of 20,000 or more.

a new commercial enterprise may be Targeted employment area means an used as the basis of a petition for clasarea which, at the time of investment, sification as an alien entrepreneur even is a rural area or an area which has ex- though there are several owners of the perienced unemployment of at least 150 enterprise, including persons who are percent of the national average rate. not seeking classification under sec

Troubled business means a business tion 203(b)(5) of the Act and non-natthat has been in existence for at least ural persons, both foreign and domestwo years, has incurred a net loss for tic, provided that the source(s) of all

1

20,000 or more within such state as an area of high unemployment (at least 150 percent of the national average rate). Evidence of such designation, including a description of the boundaries of the geographic or political subdivision and the method or methods by which the unemployment statistics were obtained, may be provided to a prospective alien entrepreneur for submission with Form 1-526. Before any such designation is made, an official of the state must notify the Associate Commissioner for Examinations of the agency, board, or other appropriate governmental body of the state which shall be delegated the authority to certify that the geographic or political subdivision is a high unemployment

area.

capital invested is identified and all invested capital has been derived by lawful means.

(2) Employment creation allocation. The total number of full-time positions created for qualifying employees shall be allocated solely to those alien entrepreneurs who have used the establishment of the new commercial enterprise as the basis of a petition on Form I-526. No allocation need be made among persons not seeking classification under section 203(b)(5) of the Act or among non-natural persons, either foreign or domestic. The Service shall recognize any reasonable agreement made among the alien entrepreneurs in regard to the identification and allocation of such qualifying positions.

(h) Establishment of a new commercial enterprise. The establishment of a new commercial enterprise may consist of:

(1) The creation of an original business;

(2) The purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results; or

(3) The expansion of an existing business through the investment of the required amount, so that a substantial change in the net worth or number of employees results from the investment of capital. Substantial change means a 40 percent increase either in the net worth, or in the number of employees, so that the new net worth, or number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees. Establishment of a new commercial enterprise in this manner does not exempt the petitioner from the requirements of 8 CFR 204.6(j) (2) and (3) relating to the required amount of capital investment and the creation of full-time employment for ten qualifying employees. In the case of a capital investment in a troubled business, employment creation may meet the criteria set forth in 8 CFR 204.6(j)(4)(ii).

(i) State designation of a high unemployment area. The state government of any state of the United States may designate a particular geographic or political subdivision located within a metropolitan statistical area or within a city or town having a population of

(j) Initial evidence to accompany petition. A petition submitted for classification as an alien entrepreneur must be accompanied by evidence that the alien has invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees. In the case of petitions submitted under the Immigrant Investor Pilot Program, a petition must be accompanied by evidence that the alien has invested, or is actively in the process of investing, capital obtained through lawful means within a regional center designated by the Service in accordance with paragraph (m)(4) of this section. The petitioner may be required to submit information or documentation that the Service deems appropriate in addition to that listed below.

(1) To show that a new commercial enterprise has been established by the petitioner in the United States, the petition must be accompanied by:

(i) As applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or other similar organizational document for the new commercial enterprise;

(ii) A certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require any such certificate or the State or municipality does not issue such a certificate, a statement to that effect; or

(iii) Evidence that, as of a date certain after November 29, 1990, the required amount of capital for the area in which an enterprise is located has been transferred to an existing business, and that the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred. This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth, number of employees.

(2) To show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk. Evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. Such evidence may include, but need not be limited to:

(i) Bank statement(s) showing amount(s) deposited in United States business account(s) for the enterprise;

(ii) Evidence of assets which have been purchased for use in the United States enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity;

(iii) Evidence of property transferred fro abroad for use in the United States enterprise, including United States Customs Service commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property;

(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;

(iii) 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–(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, Form I-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

(B) A copy of a comprehensive busi- dence that the petitioner is engaged in ness plan showing that, due to the na- either direct management or policy ture and projected size of the new com- making activities. For purposes of this mercial enterprise, the need for not section, if the petitioner is a limited fewer than ten (10) qualifying employ- partner and the limited partnership ees will result, including approximate agreement provides the petitioner with dates, within the next two years, and certain rights, powers, and duties norwhen such employees will be hired. mally granted to limited partners

(ii) Troubled business. To show that a under the Uniform Limited Partnernew commercial enterprise which has ship Act, the petitioner will be considbeen established through a capital in- ered sufficiently engaged in the manvestment in a troubled business meets agement of the new commercial enterthe statutory employment creation re- prise. quirement, the petition must be ac- (6) If applicable, to show that the new companied by evidence that the num- commercial enterprise has created or ber of existing employees is being or will create employment in a targeted will be maintained at no less than the employment area, the petition must be pre-investment level for a period of at accompanied by: least two years. Photocopies of tax (i) In the case of a rural area, evirecords, Forms 1-9, or other relevant dence that the new commercial enterdocuments for the qualifying employ- prise is principally doing business ees and a comprehensive business plan within a civil jurisdiction not located shall be submitted in support of the pe- within any standard metropolitan statition.

tistical area as designated by the Of(iii) Immigrant Investor Pilot Program. fice of Management and Budget, or To show that the new commercial en- within any city or town having a poputerprise located within a regional cen- lation of 20,000 or more as based on the ter approved for participation in the most recent decennial census of the Immigrant Investor Pilot Program United States; meets the statutory employment cre- (ii) In the case of a high unemployation requirement, the petition must ment area: be accompanied by evidence that the (A) Evidence that the metropolitan investment will create full-time posi- statistical area, the specific county tions for not fewer than 10 persons ei- within a metropolitan statistical area, ther directly or indirectly through rev- or the county in which a city or town enues generated from increased exports with a population of 20,000 or more is resulting from the Pilot Program. Such located, in which the new commercial evidence may be demonstrated by rea- enterprise is principally doing business sonable methodologies including those has experienced an average unemployset forth in paragraph (m)(3) of this ment rate of 150 percent of the national section.

average rate; or (5) To show that the petitioner is or (B) A letter from an authorized body will be engaged in the management of of the government of the state in which the new commercial enterprise, either the new commercial enterprise is lothrough the exercise of day-to-day cated which certifies that the geomanagerial control or through policy graphic or political subdivision of the formulation, as opposed to maintaining metropolitan statistical area or of the a purely passive role in regard to the city or town with a population of 20,000 investment, the petition must be ac- or more in which the enterprise is princompanied by:

cipally doing business has been des(i) A statement of the position title ignated a high unemployment area. that the petitioner has or will have in The letter must meet the requirements the new enterprise and a complete de- of 8 CFR 204.6(i). scription of the position's duties;

(k) Decision. The petitioner will be (ii) Evidence that the petitioner is a notified of the decision, and, if the pecorporate officer or a member of the tition is denied, of the reasons for the corporate board of directors; or

denial and of the petitioner's right of (iii) If the new enterprise is a part- appeal to the Associate Commissioner nership, either limited or general, evi- for Examinations in accordance with

190-024 D-00--6

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the provisions of part 103 of this chap- (ii) Provides in verifiable detail how ter. The decision must specify whether jobs will be created indirectly through or not the new commercial enterprise increased exports; is principally doing business within a (iii) Provides a detailed statement retargeted employment area.

garding the amount and source of cap(1) Disposition of approved petition.

ital which has been committed to the The approved petition will be for

regional center, as well as a description warded to the United States consulate

of the promotional efforts taken and selected by the petitioner and indi

planned by the sponsors of the regional cated on the petition. If a consulate

center; has not been designated, the petition

(iv) Contains a detailed prediction rewill be forwarded to the consulate hav

garding the manner in which the reing jurisdiction over the place of the

gional center will have a positive im

pact on the regional or national econpetitioner's last residence abroad. If

omy in general as reflected by such facthe petitioner is eligible for adjustment of status to conditional perma

tors as increased household earnings,

greater demand for business services, nent residence, and if the petition indi

utilities, maintenance and repair, and cates that the petitioner intends to

construction both within and without apply for such adjustment, the ap

the regional center; and proved petition will be retained by the

(v) Is supported by economically or Service for consideration in conjunc

statistically valid forecasting tools, intion with the application for adjust- cluding, but not limited to, feasibility ment of status.

studies, analyses of foreign and domes(m) Immigrant Investor Pilot Program- tic markets for the goods or services to (1) Scope. The Immigrant Investor Pilot be exported, and/or multiplier tables. Program is established solely pursuant (4) Submission of proposals to particito the provisions of section 610 of the pate in the Immigrant Investor Pilot ProDepartments of Commerce, Justice, gram. On August 24, 1993, the Service and State, the Judiciary, and Related will accept proposals from regional Agencies Appropriation Act, and sub- centers seeking approval to participate ject to all conditions and restrictions in the Immigrant Investor Pilot Prostipulated in that section. Except as gram. Regional centers that have been provided herein, aliens seeking to ob- approved by the Assistant Commistain immigration benefits under this sioner for Adjudications will be eligible paragraph continue to be subject to all to participate in the Immigrant Invesconditions and restrictions set forth in

tor Pilot Program. section 203(b)(5) of the Act and this sec

(5) Decision to participate in the Immition.

grant Investor Pilot Program. The Assist(2) Number of immigrant visas allocated.

ant Commissioner for Adjudications

shall notify the regional center of his The annual allocation of the visas

or her decision on the request for apavailable under the Immigrant Inves

proval to participate in the Immigrant tor Pilot Program is set at 300 for each

Investor Pilot Program, and, if the peof the five fiscal years commencing on

tition is denied, of the reasons for the October 1, 1993.

denial and of the regional center's (3) Requirements for regional centers.

right of appeal to the Associate ComEach regional center wishing to par

missioner for Examinations. Notificaticipate in the Immigrant Investor

tion of denial and appeal rights, and Pilot Program shall submit a proposal

the procedure for appeal shall be the to the Assistant Commissioner for Ad

same as those contained in 8 CFR 103.3. judications, which:

(6) Termination of participation of re(i) Clearly describes how the regional gional centers. To ensure that regional center focuses on a geographical region centers continue to meet the requireof the United States, and how it will ments of section 610(a) of the Appropromote economic growth through in- priations Act, the Assistant Commiscreased export sales, improved regional sioner for Adjudications shall issue a productivity, job creation, and in- notice of intent to terminate the parcreased domestic capital investment; ticipation of a regional center in the

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