(a) Preference Allocation forFamily-Sponsored Immigrants. - Aliens subject to the worldwide level specifiedin section 201(c) for family-sponsored immigrants shall be allotted visas asfollows:

(1) Unmarried sons anddaughters of citizens. - Qualified immigrants who are the unmarried sons ordaughters of citizens of the United States shall be allocated visas in a numbernot to exceed 23,400, plus any visas not required for the class specified inparagraph (4).

(2) Spouses and unmarried sonsand unmarried daughters of permanent resident aliens. - Qualified immigrants -

(A) who are the spouses orchildren of an alien lawfully admitted for permanent residence, or

(B) who are the unmarried sonsor unmarried daughters (but are not the children) of an alien lawfully admittedfor permanent residence, shall be allocated visas in a number not to exceed114,200, plus the number (if any) by which such worldwide level exceeds226,000, 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 toaliens described in subparagraph (A).

(3) Married sons and marrieddaughters of citizens. - Qualified immigrants who are the married sons ormarried daughters of citizens of the United States shall be allocated visas ina number not to exceed 23,400, plus any visas not required for the classesspecified in paragraphs (1) and (2).

(4) Brothers and sisters ofcitizens. - Qualified immigrants who are the brothers or sisters of citizens ofthe United States, if such citizens are at least 21 years of age, shall beallocated visas in a number not to exceed 65,000, plus any visas not requiredfor the classes specified in paragraphs (1) through (3).

(b) Preference Allocation forEmployment-Based Immigrants. - Aliens subject to the worldwide level specifiedin section 201(d) for employment-based immigrants in a fiscal year shall beallotted visas as follows:

(1) Priority workers. - Visasshall first be made available in a number not to exceed 28.6 percent of suchworldwide level, plus any visas not required for the classes specified inparagraphs (4) and (5), to qualified immigrants who are aliens described in anyof the following subparagraphs (A) through (C):

(A) Aliens with extraordinaryability. - An alien is described in this subparagraph if -

(i) the alien has extraordinaryability in the sciences, arts, education, business, or athletics which has beendemonstrated by sustained national or international acclaim and whoseachievements have been recognized in the field through extensive documentation,

(ii) the alien seeks to enterthe United States to continue work in the area of extraordinary ability, and

(iii) the alien's entry intothe United States will substantially benefit prospectively the United States.

(B) Outstanding professors andresearchers. -An alien is described in this subparagraph if -

(i) the alien is recognizedinternationally as outstanding in a specific academic area,

(ii) the alien has at least 3years of experience in teaching or research in the academic area, and

(iii) the alien seeks to enterthe United States-

(I) for a tenured position (ortenure-track position) within a university or institution of higher educationto teach in the academic area,

(II) for a comparable positionwith a university or institution of higher education to conduct research in thearea, or

(III) for a comparable positionto conduct research in the area with a department, division, or institute of aprivate employer, if the department, division, or institute employs at least 3persons full-time in research activities and has achieved documentedaccomplishments in an academic field.

(C) Certain multinationalexecutives and managers. An alien is described in this subparagraph if thealien, in the 3 years preceding the time of the alien's application forclassification and admission into the United States under this subparagraph,has been employed for at least 1 year by a firm or corporation or other legalentity or an affiliate or subsidiary thereof and the alien seeks to enter theUnited States in order to continue to render services to the same employer orto a subsidiary or affiliate thereof in a capacity that is managerial orexecutive.

(2) Aliens who are members ofthe professions holding advanced degrees or aliens of exceptional ability. -

(A) In general. - Visas shallbe made available, in a number not to exceed 28.6 percent of such worldwidelevel, plus any visas not required for the classes specified in paragraph (1),to qualified immigrants who are members of the professions holding advanceddegrees or their equivalent or who because of their exceptional ability in thesciences, arts, or business, will substantially benefit prospectively thenational economy, cultural or educational interests, or welfare of the UnitedStates, an d whose services in the sciences, arts, professions, or business aresought by an employer in the United States.

(B) (i) Subject to clause (ii),the Attorney General may, when the Attorney General deems it to be in thenational interest, waive the requirements of subparagraph (A) that an alien'sservices in the sciences, arts, professions, or business be sought by anemployer in the United States.

(ii) (I) The Attorney Generalshall grant a national interest waiver pursuant to clause (i) on behalf of anyalien physician with respect to whom a petition for preference classificationhas been filed under subparagraph (A) if--

(aa) the alien physician agreesto work full time as a physician in an area or areas designated by theSecretary of Health and Human Services as having a shortage of health care professionalsor at a health care facility under the jurisdiction of the Secretary ofVeterans Affairs; and

(bb) a Federal agency or adepartment of public health in any State has previously determined that thealien physician's work in such an area or at such facility was in the publicinterest.

(II) No permanent resident visamay be issued to an alien physician described in subclause (I) by the Secretaryof State under section204(b) , and the Attorney General may not adjust thestatus of such an alien physician from that of a nonimmigrant alien to that ofa permanent resident alien under section 245 , until such time as the alien hasworked full time as a physician for an aggregate of 5 years (not including thetime served in the status of an alien described in section 101(a)(15)(J) ), inan area or areas designated by the Secretary of Health and Human Services ashaving a shortage of health care professionals or at a health care facilityunder the jurisdiction of the Secretary of Veterans Affairs.

(III) Nothing in thissubparagraph may be construed to prevent the filing of a petition with theAttorney General for classification under section 204(a) , or the filing of anapplication for adjustment of status under section 245 , by an alien physician describedin subclause (I) prior to the date by which such alien physician has completedthe service described in subclause (II).

(IV) The requirements of thissubsection do not affect waivers on behalf of alien physicians approved undersection 203(b)(2)(B) before the enactment date of this subsection. In the caseof a physician for whom an application for a waiver was filed under section203(b)(2)(B) prior to November 1, 1998, the Attorney General shall grant anational interest waiver pursuant to section 203(b)(2)(B) except that the alienis required to have worked full time as a physician for an aggregate of 3 years(not including time served in the status of an alien described in section101(a)(15)(J) ) before a visa can be issued to the alien under section 204(b)or the status of the alien is adjusted to permanent resident under section 245.

(C) Determination ofexceptional ability. - In determining under subparagraph (A) whether animmigrant has exceptional ability, the possession of a degree, diploma,certificate, or similar award from a college, university, school, or otherinstitution of learning or a license to practice or certification for aparticular profession or occupation shall not by itself be consideredsufficient evidence of such exceptional ability.

(3) Skilled workers,professionals, and other workers.-

(A) In general. - Visas shallbe made available, in a number not to exceed 28.6 percent of such worldwidelevel, plus any visas not required for the classes specified in paragraphs (1)and (2), to the following classes of aliens who are not described in paragraph(2):

(i) Skilled workers. -Qualified immigrants who are capable, at the time of petitioning forclassification under this paragraph, of performing skilled labor (requiring atleast 2 years training or experience), not of a temporary or seasonal nature,for which qualified workers are not available in the United States.

(ii) Professionals. - Qualifiedimmigrants who hold baccalaureate degrees and who are members of theprofessions.

(iii) Other workers. - Otherqualified immigrants who are capable, at the time of petitioning forclassification under this paragraph, of performing unskilled labor, not of atemporary or seasonal nature, for which qualified workers are not available inthe United States.

(B) Limitation on otherworkers. - Not more than 10,000 of the visas made available under thisparagraph in any fiscal year may be available for qualified immigrantsdescribed in subparagraph (A)(iii).

(C) Labor certificationrequired.- An immigrant visa may not be issued to an immigrant undersubparagraph (A) until the consular officer is in receipt of a determinationmade by the Secretary of Labor pursuant to the provisions of section212(a)(5)(A) .

(4) Certain special immigrants.- Visas shall be made available, in a number not to exceed 7.1 percent of suchworldwide level, to qualified special immigrants described in section101(a)(27) (other than those described in subparagraph (A) or (B) thereof), ofwhich not more than 5,000 may be made available in any fiscal year to specialimmigrants described in subclause (II) or (III) of section 101(a)(27)(C)(ii) ,2/ and not more than 100 may be made available in any fiscal year to specialimmigrants, excluding spouses and children, who are described in section101(a)(27)(M) .

(5) Employment creation. -

(A) In general. - Visas shallbe made available, in a number not to exceed 7.1 percent of such worldwidelevel, to qualified immigrants seeking to enter the United States for thepurpose of engaging in a new commercial enterprise (including a limitedpartnership)--

(i) in which such alien has invested (after thedate of the enactment of the Immigration Act of 1990) or, is actively in theprocess of investing, capital in an amount not less than the amount specifiedin subparagraph (C), and

(ii) which will benefit theUnited States economy and create full-time employment for not fewer than 10United States citizens or aliens lawfully admitted for permanent residence orother immigrants lawfully authorized to be employed in the United States (otherthan the immigrant and the immigrant's spouse, sons, or daughters).

(B) Set-aside for targetedemployment areas.-

(i) In general. - Not less than3,000 of the visas made available under this paragraph in each fiscal yearshall be reserved for qualified immigrants who invest in a new commercialenterprise described in subparagraph (A) which will create employment in a targetedemployment area.

(ii) Targeted employment areadefined. - In this paragraph, the term ``targeted employment area'' means, atthe time of the investment, a rural area or an area which has experienced highunemployment (of at least 150 percent of the national average rate).

(iii) Rural area defined. - Inthis paragraph, the term ``rural area'' means any area other than an areawithin a metropolitan statistical area or within the outer boundary of any cityor town having a population of 20,000 or more (based on the most recentdecennial census of the United States).

(i) In general. - Except asotherwise provided in this subparagraph, the amount of capital required undersubparagraph (A) shall be $1,000,000. The Attorney General, in consultationwith the Secretary of Labor and the Secretary of State, may from time to timeprescribe regulations increasing the dollar amount specified under the previoussentence.

(ii) Adjustment for targetedemployment areas.- The Attorney General may, in the case of investment made ina targeted employment area, specify an amount of capital required undersubparagraph (A) that is less than (but not less than 1/2 of) the amountspecified in clause (i).

(iii) Adjustment for high employmentareas.-In the case of an investment made in a part of a metropolitanstatistical area that at the time of the investment -

(I) is not a targetedemployment area, and

(II) is an area with anunemployment rate significantly below the national average unemployment rate,the Attorney General may specify an amount of capital required undersubparagraph (A) that is greater than (but not greater than 3 times) the amountspecified in clause (I).

(D) Full-time employmentdefined.--In this paragraph, the term `full-time employment' means employmentin 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 againstnumerical limitation in year involved. - Subject to subparagraph (B), thenumber of immigrant visas made available to special immigrants under section101(a)(27)(K) in a fiscal year shall not be subject to the numericallimitations of this subsection or of section 202(a).

(B) Counted against numericallimitations in following year.-

(i) Reduction inemployment-based immigrant classifications. - The number of visas madeavailable in any fiscal year under paragraphs (1), (2), and (3) shall each bereduced by 1/3 of the number of visas made available in the previous fiscalyear to special immigrants described in section 101(a)(27)(K) .

(ii) Reduction in per countrylevel. - The number of visas made available in each fiscal year to natives of aforeign state under section202(a) shall be reduced by the number of visas madeavailable in the previous fiscal year to special immigrants described insection101(a)(27)(K) who are natives of the foreign state.

(iii) Reduction inemployment-based immigrant classifications within per country ceiling. - In thecase of a foreign state subject to section 202(e) in a fiscal year (and in theprevious fiscal year), the number of visas made available and allocated to eachof paragraphs (1) through (3) of this subsection in the fiscal year shall bereduced by 1/3 of the number of visas made available in the previous fiscalyear to special immigrants described in section 101(a)(27)(K) who are nativesof the forei gn state.(C)[Subparagraph (C) was stricken by Sec. 212(b) of theImmigration and Nationality Technical Corrections Act of 1994 (Pub. L. 103-416, 108 Stat. 4314, Oct. 25, 1994)]

8 CFR § Sec. 204.6 Petitionsfor employment creation aliens.

(a) General. A petition toclassify an alien under section 203(b)(5) of the Act must be filed on FormI-526, Immigrant Petition by Alien Entrepreneur. The petition must beaccompanied by the appropriate fee. Before a petition is considered properlyfiled, the petition must be signed by the petitioner, and the initialsupporting documentation required by this section must be attached. Legiblephotocopies of supporting documents will ordinarily be acceptable for initialfiling and approval. However, at the discretion of the director, originaldocuments may be required.

(b) Reserved. (Removed andreserved effective 7/6/09; 74 FR 26933)

(c) Eligibility to file. Apetition for classification as an alien entrepreneur may only be filed by anyalien on his or her own behalf.

(d) Priority date. The prioritydate of a petition for classification as an alien entrepreneur is the date thepetition is properly filed with the Service or, if filed prior to the effectivedate of these regulations, the date the Form I-526 was received at theappropriate Service Center.

(e) Definitions. As used inthis section:

Capital

means cash, equipment,inventory, other tangible property, cash equivalents, and indebtedness securedby assets owned by the alien entrepreneur, provided that the alien entrepreneuris personally and primarily liable and that the assets of the new commercialenterprise upon which the petition is based are not used to secure any of theindebtedness. All capital shall be valued at fair market value in United Statesdollars. Assets acquired, directly or indirectly, by unlawful means (such ascriminal activities) shall not be considered capital for the purposes ofsection 203(b)(5) of the Act.

Commercial enterprise

means any for-profit activityformed for the ongoing conduct of lawful business including, but not limitedto, a sole proprietorship, partnership (whether limited or general), holdingcompany, joint venture, corporation, business trust, or other entity which maybe publicly or privately owned. This definition includes a commercialenterprise consisting of a holding company and its wholly-owned subsidiaries,provided that each such subsidiary is engaged in a for-profit activity formedfor the ongoing conduct of a lawful business. This definition shall not includea noncommercial activity such as owning and operating a personal residence.

Employee

means an individual whoprovides services or labor for the new commercial enterprise and who receiveswages or other remuneration directly from the new commercial enterprise. In thecase of the Immigrant Investor Pilot Program, "employee" also meansan individual who provides services or labor in a job which has been createdindirectly through investment in the new commercial enterprise. This definitionshall not include independent contractors.

Full-time employment

means employment of aqualifying employee by the new commercial enterprise in a position thatrequires a minimum of 35 working hours per week. In the case of the ImmigrantInvestor Pilot Program, "full-time employment" also means employmentof a qualifying employee in a position that has been created indirectly throughrevenues generated from increased exports resulting from the Pilot Program thatrequires a minimum of 35 working hours per week. A job-sharing arrangementwhereby two or more qualifying employees share a full-time position shall countas full-time employment provided the hourly requirement per week is met. Thisdefinition shall not include combinations of part-time positions even if, whencombined, such positions meet the hourly requirement per week.

High employment area

means a part of a metropolitanstatistical area that at the time of investment:

(i) Is not a targetedemployment area; and

(ii) Is an area with anunemployment rate significantly below the national average unemployment rate.

Invest

means to contribute capital. Acontribution of capital in exchange for a note, bond, convertible debt,obligation, or any other debt arrangement between the alien entrepreneur andthe new commercial enterprise does not constitute a contribution of capital forthe purposes of this part.

New

means established afterNovember 29, 1990.

Qualifying employee

means a United States citizen,a lawfully admitted permanent resident, or other immigrant lawfully authorizedto be employed in the United States including, but not limited to, aconditional resident, a temporary resident, an asylee, a refugee, or an alienremaining in the United States under suspension of deportation. This definitiondoes not include the alien entrepreneur, the alien entrepreneur's spouse, sons,or daughters, or any nonimmigrant alien.

Regional center

means any economic unit, publicor private, which is involved with the promotion of economic growth, includingincreased export sales, improved regional productivity, job creation, andincreased domestic capital investment.

Rural area

means any area not withineither a metropolitan statistical area (as designated by the Office ofManagement and Budget) or the outer boundary of any city or town having apopulation of 20,000 or more.

Targeted employment area

means an area which, at thetime of investment, is a rural area or an area which has experiencedunemployment of at least 150 per cent of the national average rate.

Troubled business

means a business that has beenin existence for at least two years, has incurred a net loss for accountingpurposes (determined on the basis of generally accepted accounting principles)during the twelve or twenty-four month period prior to the priority date on thealien entrepreneur's Form I-526, and the loss for such period is at least equalto twenty per cent of the troubled business's net worth prior to such loss. Forpurposes of determining whether or not the troubled business has been inexistence for two years, successors in interest to the troubled business willbe deemed to have been in existence for the same period of time as the businessthey succeeded.

(f) Required amounts ofcapital.

(1) General. Unless otherwisespecified, the amount of capital necessary to make a qualifying investment inthe United States is one million United States dollars ($1,000,000).

(2) Targeted employment area.The amount of capital necessary to make a qualifying investment in a targetedemployment area within the United States is five hundred thousand United Statesdollars ($500,000).

(3) High employment area. Theamount of capital necessary to make a qualifying investment in a highemployment area within the United States, as defined in section203(b)(5)(C)(iii) of the Act, is one million United States dollars($1,000,000).

(g) Multiple investors --

(1) General. The establishmentof a new commercial enterprise may be used as the basis of a petition forclassification as an alien entrepreneur by more than one investor, providedeach petitioning investor has invested or is actively in the process ofinvesting the required amount for the area in which the new commercialenterprise is principally doing business, and provided each individualinvestment results in the creation of at least ten full-time positions forqualifying employees. The establishment of a new commercial enterprise may beused as the basis of a petition for classification as an alien entrepreneureven though there are several owners of the enterprise, including persons whoare not seeking classification under section 203(b)(5) of the Act andnon-natural persons, both foreign and domestic, provided that the source(s) ofall capital invested is identified and all invested capital has been derived bylawful means.

(2) Employment creationallocation. The total number of full-time positions created for qualifyingemployees shall be allocated solely to those alien entrepreneurs who have usedthe establishment of the new commercial enterprise as the basis of a petitionon Form I-526. No allocation need be made among persons not seekingclassification under section 203(b)(5) of the Act or among non-natural persons,either foreign or domestic. The Service shall recognize any reasonableagreement made among the alien entrepreneurs in regard to the identificationand allocation of such qualifying positions.

(h) Establishment of a newcommercial enterprise. The establishment of a new commercial enterprise mayconsist of:

(1) The creation of an originalbusiness;

(2) The purchase of an existingbusiness and simultaneous or subsequent restructuring or reorganization suchthat a new commercial enterprise results; or

(3) The expansion of anexisting business through the investment of the required amount, so that asubstantial change in the net worth or number of employees results from theinvestment of capital. Substantial change means a 40 percent increase either inthe net worth, or in the number of employees, so that the new net worth, ornumber of employees amounts to at least 140 percent of the pre-expansion networth or number of employees. Establishment of a new commercial enterprise inthis manner does not exempt the petitioner from the requirements of 8 CFR204.6(j)(2) and (3) relating to the required amount of capital investment andthe creation of full-time employment for ten qualifying employees. In the caseof a capital investment in a troubled business, employment creation may meetthe criteria set forth in8 CFR 204.6(j)(4)(ii).

(i) State designation of a highunemployment area. The state government of any state of the United States maydesignate a particular geographic or political subdivision located within ametropolitan statistical area or within a city or town having a population of20,000 or more within such state as an area of high unemployment (at least 150percent of the national average rate). Evidence of such designation, includinga description of the boundaries of the geographic or political subdivision andthe method or methods by which the unemployment statistics were obtained, maybe provided to a prospective alien entrepreneur for submission with Form I-526.Before any such designation is made, an official of the state must notify theAssociate Commissioner for Examinations of the agency, board, or otherappropriate governmental body of the state which shall be delegated theauthority to certify that the geographic or political subdivision is a highunemployment area.

(j) Initial evidence toaccompany petition. A petition submitted for classification as an alienentrepreneur must be accompanied by evidence that the alien has invested or isactively in the process of investing lawfully obtained capital in a newcommercial enterprise in the United States which will create full-timepositions for not fewer than 10 qualifying employees. In the case of petitionssubmitted under the Immigrant Investor Pilot Program, a petition must beaccompanied by evidence that the alien has invested, or is actively in theprocess of investing, capital obtained through lawful means within a regionalcenter designated by the Service in accordance with paragraph (m)(4) of thissection. The petitioner may be required to submit information or documentationthat the Service deems appropriate in addition to that listed below.

(1) To show that a newcommercial enterprise has been established by the petitioner in the UnitedStates, the petition must be accompanied by:

(i) As applicable, articles ofincorporation, certificate of merger or consolidation, partnership agreement,certificate of limited partnership, joint venture agreement, business trustagreement, or other similar organizational document for the new commercialenterprise;

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

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

(2) To show that the petitionerhas invested or is actively in the process of investing the required amount ofcapital, the petition must be accompanied by evidence that the petitioner hasplaced the required amount of capital at risk for the purpose of generating areturn on the capital placed at risk. Evidence of mere intent to invest, or of prospectiveinvestment arrangements entailing no present commitment, will not suffice toshow that the petitioner is actively in the process of investing. The alienmust show actual commitment of the required amount of capital. Such evidencemay include, but need not be limited to:

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

(ii) Evidence of assets whichhave been purchased for use in the United States enterprise, includinginvoices, sales receipts, and purchase contracts containing sufficientinformation to identify such assets, their purchase costs, date of purchase,and purchasing entity;

(iii) Evidence of propertytransferred from abroad for use in the United States enterprise, includingUnited States Customs Service commercial entry documents, bills of lading, andtransit insurance policies containing ownership information and sufficient informationto identify the property and to indicate the fair market value of suchproperty;

(iv) Evidence of moniestransferred or committed to be transferred to the new commercial enterprise inexchange for shares of stock (voting or nonvoting, common or preferred). Suchstock may not include terms requiring the new commercial enterprise to redeemit at the holder's request; or

(v) Evidence of any loan ormortgage agreement, promissory note, security agreement, or other evidence ofborrowing which is secured by assets of the petitioner, other than those of thenew commercial enterprise, and for which the petitioner is personally andprimarily liable.

(3) To show that the petitionerhas invested, or is actively in the process of investing, capital obtainedthrough lawful means, the petition must be accompanied, as applicable, by:

(i) Foreign businessregistration records;

(ii) Corporate, partnership (orany other entity in any form which has filed in any country or subdivisionthereof any return described in this subpart), and personal tax returnsincluding income, franchise, property (whether real, personal, or intangible),or any other tax returns of any kind filed within five years, with any taxingjurisdiction in or outside the United States by or on behalf of the petitioner;

(iii) Evidence identifying anyother source(s) of capital; or

(iv) Certified copies of anyjudgments or evidence of all pending governmental civil or criminal actions,governmental administrative proceedings, and any private civil actions (pendingor otherwise) involving monetary judgments against the petitioner from anycourt in or outside the United States within the past fifteen years.

(4) Job creation --

(i) General. To show that a newcommercial enterprise will create not fewer than ten (10) full-time positionsfor qualifying employees, the petition must be accompanied by:

(A) Documentation consisting ofphotocopies of relevant tax records, Forms I-9, or other similar documents forten (10) qualifying employees, if such employees have already been hiredfollowing the establishment of the new commercial enterprise; or

(B) A copy of a comprehensivebusiness plan showing that, due to the nature and projected size of the newcommercial enterprise, the need for not fewer than ten (10) qualifyingemployees will result, including approximate dates, within the next two years,and when such employees will be hired.

(ii) Troubled business. To showthat a new commercial enterprise which has been established through a capitalinvestment in a troubled business meets the statutory employment creationrequirement, the petition must be accompanied by evidence that the number ofexisting employees is being or will be maintained at no less than thepre-investment level for a period of at least two years. Photocopies of taxrecords, Forms I-9, or other relevant documents for the qualifying employeesand a comprehensive business plan shall be submitted in support of the petition.

(iii) Immigrant Investor PilotProgram. To show that the new commercial enterprise located within a regionalcenter approved for participation in the Immigrant Investor Pilot Program meetsthe statutory employment creation requirement, the petition must be accompaniedby evidence that the investment will create full-time positions for not fewerthan 10 persons either directly or indirectly through revenues generated fromincreased exports resulting from the Pilot Program. Such evidence may be demonstratedby reasonable methodologies including those set forth in paragraph (m)(3) ofthis section.

(5) To show that the petitioneris or will be engaged in the management of the new commercial enterprise,either through the exercise of day-to-day managerial control or through policyformulation, as opposed to maintaining a purely passive role in regard to theinvestment, the petition must be accompanied by:

(i) A statement of the positiontitle that the petitioner has or will have in the new enterprise and a completedescription of the position's duties;

(ii) Evidence that thepetitioner is a corporate officer or a member of the corporate board ofdirectors; or

(iii) If the new enterprise isa partnership, either limited or general, evidence that the petitioner isengaged in either direct management or policy making activities. For purposesof this section, if the petitioner is a limited partner and the limitedpartnership agreement provides the petitioner with certain rights, powers, andduties normally granted to limited partners under the Uniform LimitedPartnership Act, the petitioner will be considered sufficiently engaged in themanagement of the new commercial enterprise.

(6) If applicable, to show thatthe new commercial enterprise has created or will create employment in atargeted employment area, the petition must be accompanied by:

(i) In the case of a ruralarea, evidence that the new commercial enterprise is principally doing businesswithin a civil jurisdiction not located within any standard metropolitanstatistical area as designated by the Office of Management and Budget, or withinany city or town having a population of 20,000 or more as based on the mostrecent decennial census of the United States; or

(ii) In the case of a highunemployment area:

(A) Evidence that themetropolitan statistical area, the specific county within a metropolitanstatistical area, or the county in which a city or town with a population of20,000 or more is located, in which the new commercial enterprise isprincipally doing business has experienced an average unemployment rate of 150percent of the national average rate; or

(B) A letter from an authorizedbody of the government of the state in which the new commercial enterprise islocated which certifies that the geographic or political subdivision of themetropolitan statistical area or of the city or town with a population of20,000 or more in which the enterprise is principally doing business has beendesignated a high unemployment area. The letter must meet the requirements of 8CFR 204.6(i).

(k) Decision. The petitionerwill be notified of the decision, and, if the petition is denied, of thereasons for the denial and of the petitioner's right of appeal to the AssociateCommissioner for Examinations in accordance with the provisions of part 103 ofthis chapter. The decision must specify whether or not the new commercialenterprise is principally doing business within a targeted employment area.

(l) [Reserved] (Removed andreserved effective 11/28/11; 76 FR 53764)

(m) Immigrant Investor PilotProgram.

(1) Scope. The ImmigrantInvestor Pilot Program is established solely pursuant to the provisions ofsection 610 of the Departments of Commerce, Justice, and State, the Judiciary,and Related Agencies Appropriation Act, and subject to all conditions andrestrictions stipulated in that section. Except as provided herein, aliensseeking to obtain immigration benefits under this paragraph continue to besubject to all conditions and restrictions set forth in section 203(b)(5) ofthe Act and this section.

(2) Number of immigrant visasallocated. The annual allocation of the visas available under the ImmigrantInvestor Pilot Program is set at 300 for each of the five fiscal yearscommencing on October 1, 1993.

(3) Requirements for regionalcenters. Each regional center wishing to participate in the Immigrant InvestorPilot Program shall submit a proposal to the Assistant Commissioner forAdjudications, which:

(i) Clearly describes how theregional center focuses on a geographical region of the United States, and howit will promote economic growth through increased export sales, improvedregional productivity, job creation, and increased domestic capital investment;

(ii) Provides in verifiabledetail how jobs will be created indirectly through increased exports;

(iii) Provides a detailedstatement regarding the amount and source of capital which has been committedto the regional center, as well as a description of the promotional effortstaken and planned by the sponsors of the regional center;

(iv) Contains a detailedprediction regarding the manner in which the regional center will have apositive impact on the regional or national economy in general as reflected bysuch factors as increased household earnings, greater demand for businessservices, utilities, maintenance and repair, and construction both within andwithout the regional center; and

(v) Is supported byeconomically or statistically valid forecasting tools, including, but notlimited to, feasibility studies, analyses of foreign and domestic markets forthe goods or services to be exported, and/or multiplier tables.

(4) Submission of proposals toparticipate in the Immigrant Investor Pilot Program. On August 24, 1993, theService will accept proposals from regional centers seeking approval toparticipate in the Immigrant Investor Pilot Program. Regional centers that havebeen approved by the Assistant Commissioner for Adjudications will be eligibleto participate in the Immigrant Investor Pilot Program.

(5) Decision to participate inthe Immigrant Investor Pilot Program. The Assistant Commissioner forAdjudications shall notify the regional center of his or her decision on therequest for approval to participate in the Immigrant Investor Pilot Program,and, if the petition is denied, of the reasons for the denial and of theregional center's right of appeal to the Associate Commissioner forExaminations. Notification of denial and appeal rights, and the procedure forappeal shall be the same as those contained in 8 CFR 103.3.

(6) Termination ofparticipation of regional centers. To ensure that regional centers continue tomeet the requirements of section 610(a) of the Appropriations Act, a regionalcenter must provide USCIS with updated information to demonstrate the regionalcenter is continuing to promote economic growth, improved regionalproductivity, job creation, or increased domestic capital investment in theapproved geographic area. Such information must be submitted to USCIS on anannual basis, on a cumulative basis, and/or as otherwise requested by USCIS,using a form designated for this purpose. USCIS will issue a notice of intentto terminate the participation of a regional center in the pilot program if aregional center fails to submit the required information or upon adetermination that the regional center no longer serves the purpose ofpromoting economic growth, including increased export sales, improved regionalproductivity, job creation, and increased domestic capital investment. Thenotice of intent to terminate shall be made upon notice to the regional centerand shall set forth the reasons for termination. The regional center must beprovided 30 days from receipt of the notice of intent to terminate to offerevidence in opposition to the ground or grounds alleged in the notice of intentto terminate. If USCIS determines that the regional center's participation inthe Pilot Program should be terminated, USCIS shall notify the regional centerof the decision and of the reasons for termination. As provided in 8 CFR 103.3,the regional center may appeal the decision to USCIS within 30 days after theservice of notice. (Revised effective 11/23/10; 75 FR 58962)

(7) Requirements for alienentrepreneurs. An alien seeking an immigrant visa as an alien entrepreneurunder the Immigrant Investor Pilot Program must demonstrate that his or herqualifying investment is within a regional center approved pursuant toparagraph (m)(4) of this section and that such investment will create jobsindirectly through revenues generated from increased exports resulting from thenew commercial enterprise.

(i) Exports. For purposes ofthis paragraph (m) of this section, the term "exports" means servicesor goods which are produced directly or indirectly through revenues generatedfrom a new commercial enterprise and which are transported out of the United States;

(ii) Indirect job creation. Toshow that 10 or more jobs are actually created indirectly by the business,reasonable methodologies may be used. Such methodologies may include multipliertables, feasibility studies, analyses of foreign and domestic markets for thegoods or services to be exported, and other economically or statistically validforecasting devices which indicate the likelihood that the business will resultin increased employment.

(8) Time for submission ofpetitions for classification as an alien entrepreneur under the ImmigrantInvestor Pilot Program. Commencing on October 1, 1993, petitions will beaccepted for filing and adjudicated in accordance with the provisions of thissection if the alien entrepreneur has invested or is actively in the process ofinvesting within a regional center which has been approved by the Service forparticipation in the Pilot Program.

(9) Effect of termination ofapproval of regional center to participate in the Immigrant Investor PilotProgram. Upon termination of approval of a regional center to participate inthe Immigrant Investor Pilot Program, the director shall send a formal writtennotice to any alien within the regional center who has been granted lawfulpermanent residence on a conditional basis under the Pilot Program, and who hasnot yet removed the conditional basis of such lawful permanent residence, ofthe termination of the alien's permanent resident status, unless the alien canestablish continued eligibility for alien entrepreneur classification undersection 203(b)(5) of the Act.

CFR § Sec. 216.6 Petition byentrepreneur to remove conditional basis of lawful permanent resident status.

(Section 216.6 added 5/23/94;59 FR 26587)

(a) Filing the petition -

(1) General procedures . Apetition to remove the conditional basis of the permanent resident status of analien accorded conditional permanent residence pursuant to section 203(b)(5) ofthe Act must be filed by the alien entrepreneur on Form I-829, Petition byEntrepreneur to Remove Conditions. The alien entrepreneur must file Form I-829within the 90-day period preceding the second anniversary of his or heradmission to the United States as a conditional permanent resident. Before FormI-829 may be considered as properly filed, it must be accompanied by the feerequired under Sec. 103.7(b)(1) of this chapter, and by documentation asdescribed in paragraph (a)(4) of this section, and it must be properly signedby the alien. Upon receipt of a properly filed Form I-829, the alien'sconditional permanent resident status shall be extended automatically, ifnecessary, until such time as the director has adjudicated the petition. Theentrepreneur's spouse and children should be included in the petition to removeconditions. Children who have reached the age of twenty-one or who have marriedduring the period of conditional permanent residence and the former spouse ofan entrepreneur, who was divorced from the entrepreneur during the period ofconditional permanent residence, may be included in the alien entrepreneur'spetition or may file a separate petition.

(2) Reserved. (Removed andreserved effective 7/6/09; 74 FR 26933 )

(3) Physical presence at timeof filing . A petition may be filed regardless of whether the alien isphysically present in the United States. However, if the alien is outside theUnited States at the time of filing, he or she must return to the UnitedStates, with his or her spouse and children, if necessary, to comply with theinterview requirements contained in the Act. Once the petition has beenproperly filed, the alien may travel outside the United States and return if inpossession of documentation as set forth in Sec. 211.1(b)(1) of this chapter,provided the alien complies with the interview requirements described inparagraph (b) of this section. An alien who is not physically present in theUnited States during the filing period but subsequently applies for admissionto the United States shall be processed in accordance with Sec. 235.11 of thischapter.

(4) Documentation . Thepetition for removal of conditions must be accompanied by the followingevidence:

(i) Evidence that a commercialenterprise was established by the alien. Such evidence may include, but is notlimited to, Federal income tax returns;

(ii) Evidence that the alieninvested or was actively in the process of investing the requisite capital.Such evidence may include, but is not limited to, an audited financialstatement or other probative evidence; and

(iii) Evidence that the aliensustained the actions described in paragraph (a)(4)(i) and (a)(4)(ii) of thissection throughout the period of the alien's residence in the United States.The alien will be considered to have sustained the actions required for removalof conditions if he or she has, in good faith, substantially met the capitalinvestment requirement of the statute and continuously maintained his or hercapital investment over the two years of conditional residence. Such evidencemay include, but i s not limited to, bank statements, invoices, receipts,contracts, business licenses, Federal or State income tax returns, and Federalor State quarterly tax statements.

(iv) Evidence that the aliencreated or can be expected to create within a reasonable time ten full-timejobs for qualifying employees. In the case of a "troubled business"as defined in 8 CFR 204.6(j)(4)(ii) , the alien entrepreneur must submitevidence that the commercial enterprise maintained the number of existingemployees at no less than the pre-investment level for the period following hisor her admission as a conditional permanent resident. Such evidence may includepayroll records, relevant tax documents, and Forms I-9.

(5) Termination of status forfailure to file petition . Failure to properly file Form I-829 within the90-day period immediately preceding the second anniversary of the date on whichthe alien obtained lawful permanent residence on a conditional basis shallresult in the automatic termination of the alien's permanent resident statusand the initiation of deportation proceedings. The director shall send awritten notice of termination and an order to show cause to an alienentrepreneur who fails to timely file a petition for removal of conditions. Noappeal shall lie from this decision; however, the alien may request a review ofthe determination during deportation proceedings. In deportation proceedings,the burden of proof shall rest with the alien to show by a preponderance of theevidence that he or she complied with the requirement to file the petitionwithin the designated period. The director may deem the petition to have beenfiled prior to the second anniversary of the alien's obtaining conditionalpermanent resident status and accept and consider a late petition if the aliendemonstrates to the director's satisfaction that failure to file a timelypetition was for good cause and due to extenuating circumstances. If the latepetition is filed prior to jurisdiction vesting with the immigration judge indeportation proceedings and the director excuses the late filing and approvesthe petition, he or she shall restore the alien's permanent resident status,remove the conditional basis of such status, and cancel any outstanding orderto show cause in acc ordance with Sec. 242 .7 of this chapter. If the petitionis not filed until after jurisdiction vests with the immigration judge, theimmigration judge may terminate the matter upon joint motion by the alien andthe Service.

(6) Death of entrepreneur andeffect on spouse and children . If an entrepreneur dies during the prescribedtwo-year period of conditional permanent residence, the spouse and children ofthe entrepreneur will be eligible for removal of conditions if it can bedemonstrated that the conditions set forth in paragraph (a)(4) of this sectionhave been met.

(b) Petition review --

(1) Authority to waiveinterview . The director of the service center shall review the Form I-829 andthe supporting documents to determine whether to waive the interview requiredby the Act. If satisfied that the requirements set forth in paragraph (c)(1) ofthis section have been met, the service center director may waive the interviewand approve the petition. If not so satisfied, then the service center directorshall forward the petition to the district director having jurisdiction overthe location of the alien entrepreneur's comme rcial enterprise in the UnitedStates so that an interview of the alien entrepreneur may be conducted. Thedirector must either waive the requirement for an interview and adjudicate thepetition or arrange for an interview within 90 days of the date on which thepetition was properly filed.

(2) Location of interview .Unless waived, an interview relating to the Form I-829 shall be conducted by animmigration examiner or other officer so designated by the district director atthe district office that has jurisdiction over the location of the alienentrepreneur's commercial enterprise in the United States.

(3) Termination of status forfailure to appear for interview . If the alien fails to appear for an interviewin connection with the petition when requested by the Service, the alien'spermanent resident status will be automatically terminated as of the secondanniversary of the date on which the alien obtained permanent residence. Thealien will be provided with written notification of the termination and thereasons therefore, and an order to show cause shall be issued placing the alienunder deportation proceedings. The alien may seek review of the decision to terminate his or her status in such proceedings, but the burden shall be on thealien to establish by a preponderance of the evidence that he or she compliedwith the interview requirements. If the alien has failed to appear for ascheduled interview, he or she may submit a written request to the districtdirector asking that the interview be rescheduled or that the interview bewaived. That request should explain his or her failure to appear for thescheduled interview, and if a request for waiver of the interview, the reasonssuch waiver should be granted. If the district director determines that thereis good cause for granting the request, the interview may be rescheduled orwaived, as appropriate. If the district director waives the interview, he orshe shall restore the alien's conditional permanent resident status, cancel anyoutstanding order to show cause in accordance with Sec. 242 .7 of this chapter,and proceed to adjudicate the alien's petition. If the district directorreschedules that alien's interview, he or she shall restore the alien'sconditional permanent resident status, and cancel any outstanding order to showcause in accordance with Sec. 242 .7 of this chapter. If the interview isrescheduled at the request of the alien, the Service shall not be required toconduct the interview within the 90-day period following the filing of thepetition.

(1) The decision on thepetition shall be made within 90 days of the date of filing or within 90 daysof the interview, whichever is later. In adjudicating the petition, thedirector shall determine whether:

(i) A commercial enterprise wasestablished by the alien;

(ii) The alien invested or wasactively in the process of investing the requisite capital; and

(iii) The alien sustained theactions described in paragraphs (c)(1)(i) and (c)(1)(ii) of this sectionthroughout the period of the alien's residence in the United States. The alienwill be considered to have sustained the actions required for removal ofconditions if he or she has, in good faith, substantially met the capitalinvestment requirement of the statute and continuously maintained his or hercapital investment over the two years of conditional residence.

(iv) The alien created or canbe expected to create within a reasonable period of time ten full-time jobs toqualifying employees. In the case of a "troubled business" as definedin 8 CFR 204.6(j)(4)(ii) , the alien maintained the number of existingemployees at no less than the pre-investment level for the previous two years.

(2) If derogatory informationis determined regarding any of these issues or it becomes known to thegovernment that the entrepreneur obtained his or her investment funds throughother than legal means (such as through the sale of illegal drugs), thedirector shall offer the alien entrepreneur the opportunity to rebut suchinformation. If the alien entrepreneur fails to overcome such derogatoryinformation or evidence the investment funds were obtained through other thanlegal means, the director may deny the petition, terminate the alien'spermanent resident status, and issue an order to show cause. If derogatoryinformation not relating to any of these issues is determined during the courseof the interview, such information shall be forwarded to the investigationsunit for appropriate action. If no unresolved derogatory information isdetermined relating to these issues, the petition shall be approved and theconditional basis of the alien's permanent resident status removed, regardlessof any action taken or contemplated regarding other possible grounds fordeportation.

(d) Decision-

(1) Approval . If, afterinitial review or after the interview, the director approves the petition, heor she will remove the conditional basis of the alien's permanent residentstatus as of the second anniversary of the alien's entry as a conditional permanentresident. He or she shall provide written notice of the decision to the alienand shall require the alien to report to the appropriate district office forprocessing for a new Permanent Resident Card, Form I-551, at which time thealien shall surrender any Perm anent Resident Card previously issued. (Amendedeffective 1/20/99; 63 FR 70313 )

(2) Denial . If, after initialreview or after the interview, the director denies the petition, he or sheshall provide written notice to the alien of the decision and the reason(s)therefor, and shall issue an order to show cause why the alien should not bedeported from the United States. The alien's lawful permanent resident statusand that of his or her spouse and any children shall be terminated as of the dateof the director's written decision. The alien shall also be instructed tosurrender any Permanent Res ident Card previously issued by the Service. Noappeal shall lie from this decision; however, the alien may seek review of thedecision in deportation proceedings. In deportation proceedings, the burdenshall rest with the Service to establish by a preponderance of the evidencethat the facts and information in the alien's petition for removal ofconditions are not true and that the petition was properly denied. (Amendedeffective 1/20/99; 63 FR 70313 )

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