INA: ACT 203 - ALLOCATION OF IMMIGRANT VISAS

Sec. 203. \[8 U.S.C. 1153\]

\(a\) Preference Allocation for Family-Sponsored Immigrants. - Aliens
subject to the worldwide level specified in section 201(c) for
family-sponsored immigrants shall be allotted visas as follows:

\(1\) Unmarried sons and daughters of citizens. - Qualified immigrants
who are the unmarried sons or daughters of citizens of the United States
shall be allocated visas in a number not to exceed 23,400, plus any
visas not required for the class specified in paragraph (4).

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

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

\(B\) who are the unmarried sons or unmarried daughters (but are not the
children) of an alien lawfully admitted for permanent residence, shall
be allocated visas in a number not to exceed 114,200, plus the number
(if any) by which such worldwide level exceeds 226,000, 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 to aliens
described in subparagraph (A).

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

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

\(b\) Preference Allocation for Employment-Based Immigrants. - Aliens
subject to the worldwide level specified in section 201(d) for
employment-based immigrants in a fiscal year shall be allotted visas as
follows:

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

\(A\) Aliens with extraordinary ability. - An alien is described in this
subparagraph if -

\(i\) the alien has extraordinary ability in the sciences, arts,
education, business, or athletics which has been demonstrated by
sustained national or international acclaim and whose achievements have
been recognized in the field through extensive documentation,

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

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

\(B\) Outstanding professors and researchers. -An alien is described in
this subparagraph if -

\(i\) the alien is recognized internationally as outstanding in a
specific academic area,

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

\(iii\) the alien seeks to enter the United States-

\(I\) for a tenured position (or tenure-track position) within a
university or institution of higher education to teach in the academic
area,

\(II\) for a comparable position with a university or institution of
higher education to conduct research in the area, or

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

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

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

\(A\) In general. - Visas shall be made available, in a number not to
exceed 28.6 percent of such worldwide level, plus any visas not required
for the classes specified in paragraph (1), to qualified immigrants who
are members of the professions holding advanced degrees or their
equivalent or who because of their exceptional ability in the sciences,
arts, or business, will substantially benefit prospectively the national
economy, cultural or educational interests, or welfare of the United
States, and whose services in the sciences, arts, professions, or
business are sought by an employer in the United States.

\(B\) (i) 1/ 1a/ Subject to clause (ii), the Attorney General may, when
the Attorney General deems it to be in the national interest, waive the
requirements of subparagraph (A) that an alien\'s services in the
sciences, arts, professions, or business be sought by an employer in the
United States.

(ii)(I) The Attorney General shall grant a national interest waiver
pursuant to clause (i) on behalf of any alien physician with respect to
whom a petition for preference classification has been filed under
subparagraph (A) if\--

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

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

\(II\) No permanent resident visa may be issued to an alien physician
described in subclause (I) by the Secretary of State under section
204(b), and the Attorney General may not adjust the status of such an
alien physician from that of a nonimmigrant alien to that of a permanent
resident alien under section 245, until such time as the alien has
worked full time as a physician for an aggregate of 5 years (not
including the time served in the status of an alien described in section
101(a)(15)(J)), in an area or areas designated by the Secretary of
Health and Human Services as having a shortage of health care
professionals or at a health care facility under the jurisdiction of the
Secretary of Veterans Affairs.

\(III\) Nothing in this subparagraph may be construed to prevent the
filing of a petition with the Attorney General for classification under
section 204(a), or the filing of an application for adjustment of status
under section 245, by an alien physician described in subclause (I)
prior to the date by which such alien physician has completed the
service described in subclause (II).

\(IV\) The requirements of this subsection do not affect waivers on
behalf of alien physicians approved under section 203(b)(2)(B) before
the enactment date of this subsection. In the case of a physician for
whom an application for a waiver was filed under section 203(b)(2)(B)
prior to November 1, 1998, the Attorney General shall grant a national
interest waiver pursuant to section 203(b)(2)(B) except that the alien
is 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 section 101(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 of exceptional ability. - In determining under
subparagraph (A) whether an immigrant has exceptional ability, the
possession of a degree, diploma, certificate, or similar award from a
college, university, school, or other institution of learning or a
license to practice or certification for a particular profession or
occupation shall not by itself be considered sufficient evidence of such
exceptional ability.

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

\(A\) In general. - Visas shall be made available, in a number not to
exceed 28.6 percent of such worldwide level, 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 for classification under this paragraph, of
performing skilled labor (requiring at least 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. - Qualified immigrants who hold baccalaureate
degrees and who are members of the professions.

\(iii\) Other workers. - Other qualified immigrants who are capable, at
the time of petitioning for classification under this paragraph, of
performing unskilled labor, not of a temporary or seasonal nature, for
which qualified workers are not available in the United States.

\(B\) Limitation on other workers. - Not more than 10,000 of the visas
made available under this paragraph in any fiscal year may be available
for qualified immigrants described in subparagraph (A)(iii).

\(C\) Labor certification required.- An immigrant visa may not be issued
to an immigrant under subparagraph (A) until the consular officer is in
receipt of a determination made by the Secretary of Labor pursuant to
the provisions of section 212(a)(5)(A).

\(4\) Certain special immigrants. - Visas shall be made available, in a
number not to exceed 7.1 percent of such worldwide level, to qualified
special immigrants described in section 101(a)(27) (other than those
described in subparagraph (A) or (B) thereof), of which not more than
5,000 may be made available in any fiscal year to special immigrants
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
special immigrants, excluding spouses and children, who are described in
section 101(a)(27)(M).

\(5\) Employment creation. -

\(A\) In general. - Visas shall be made available, in a number not to
exceed 7.1 percent of such worldwide level, to qualified immigrants
seeking to enter the United States for the purpose of engaging in a new
commercial 4/ enterprise (including a limited partnership)\--

\(i\) 4/ in which such alien has invested (after the date of the
enactment of the Immigration Act of 1990) or, is actively in the process
of investing, capital in an amount not less than the amount specified in
subparagraph (C), and

\(ii\) 4/ which will benefit the United States economy and create
full-time employment for not fewer than 10 United States citizens or
aliens lawfully admitted for permanent residence or other immigrants
lawfully authorized to be employed in the United States (other than the
immigrant and the immigrant\'s spouse, sons, or daughters).

\(B\) Set-aside for targeted employment areas.-

\(i\) In general. - Not less than 3,000 of the visas made available
under this paragraph in each fiscal year shall be reserved for qualified
immigrants who 4/ invest in a new commercial enterprise described in
subparagraph (A) which will create employment in a targeted employment
area.

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

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

\(C\) Amount of capital required. -

\(i\) In general. - Except as otherwise provided in this subparagraph,
the amount of capital required under subparagraph (A) shall be
\$1,000,000. The Attorney General, in consultation with the Secretary of
Labor and the Secretary of State, may from time to time prescribe
regulations increasing the dollar amount specified under the previous
sentence.

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

\(iii\) Adjustment for high employment areas.-In the case of an
investment made in a part of a metropolitan statistical area that at the
time of the investment -

\(I\) is not a targeted employment area, and

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

\(D\) 4/ Full-time employment defined.\--In this paragraph, the term
\`full-time employment\' means employment in 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 against numerical limitation in year involved. -
Subject to subparagraph (B), the number of immigrant visas made
available to special immigrants under section 101(a)(27)(K) in a fiscal
year shall not be subject to the numerical limitations of this
subsection or of section 202(a).

\(B\) Counted against numerical limitations in following year.-

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

\(ii\) Reduction in per country level. - The number of visas made
available in each fiscal year to natives of a foreign state under
section 202(a) shall be reduced by the number of visas made available in
the previous fiscal year to special immigrants described in section
101(a)(27)(K) who are natives of the foreign state.

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