bargaining unit of the employer in which the alien intends to perform that
service—
(A) is not entitled to be classified as a nonimmigrant under this sec-
tion;
(B) may not be paroled into the United States under section 6123
of this title, unless the Attorney General decides that the parole of the
alien is necessary to protect the security of the United States; and
(C) is not a crewmember under section 2703(d) of this title.
(2) Paragraph (1) of this subsection does not apply to an alien if the air
carrier or owner or operator of the vessel employing the alien provides docu-
mentation that satisfies the Attorney General that the alien—
(A) has been employed by that employer for at least a one-year pe-
riod before the date that the strike or illegal lockout began;
(B) has served as a qualified crewmember for that employer at least
once in each of 3 months during the 12-month period before that date;
and
(C) will continue to perform the same services that the alien provided
during the alien’s employment described by clause (B) of this para-
graph.
§ 2306. Aliens entitled to enter under treaties of commerce
and navigation
(a) DEFINITION.—In this section, ‘‘citizen of Mexico’’ has the same
meaning given that term in Annex 1608 of the North American Free Trade
Agreement.
(b) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A) is entitled to enter the United States under a treaty of com-
merce and navigation between the United States Government and the
government of the foreign country of which the alien is a national
only—
(i) to carry on an amount of trade (including trade in services
or technology) principally between the United States and the coun-
try of which the alien is a national, that the Secretary of State
decides, after consulting with appropriate agencies, is substantial;
or
(ii) to develop and direct the operations of an enterprise in
which the alien has invested or is actively in the process of invest-
ing an amount of capital that the Secretary of State decides, after
consulting with appropriate agencies, is substantial; or
(B) is the spouse or child of an alien described by subclause (A) of
this clause if accompanying or following to join the alien;
(2) on a reciprocal basis under the United States-Canada Free-Trade
Agreement—
(A)(i) is a citizen of Canada; and
(ii) is coming to the United States only for a purpose specified
by Annex 1502.1 (United States of America), Part B—Traders
and Investors, of the United States-Canada Free-Trade Agree-
ment, but only if the purpose is specified by that Annex on Janu-
ary 1, 1989; or
(B) is the spouse or child of an alien described by subclause (A)
of this clause if accompanying or following to join the alien;
(3)(A)(i) is a citizen of Canada;
(ii) is coming to the United States under Annex 1502.1 (United
States of America), Part C—Professionals, of the United States-Can-
ada Free-Trade Agreement to engage in business activities at a profes-
sional level as provided by that Annex; and
(iii) may be admitted to engage in those activities under regulations
prescribed by the Attorney General after consulting with the Secretar-
ies of State and Labor; or
(B) is the spouse or child of an alien described by subclause (A) of
this clause if accompanying or following to join the alien;
(4) subject to subsection (e) of this section, on a reciprocal basis
under the North American Free Trade Agreement—
(A)(i) is a citizen of Canada or a citizen of Mexico; and
(ii) is coming to the United States only for a purpose specified
by section B of Annex 1603 of the Agreement but only if the pur-
pose is specified by Annex 1603 on January 1, 1994; or
(B) is the spouse or child of an alien described by subclause (A)
of this clause if accompanying or following to join the alien; or
(5)(A) subject to subsections (c)–(e) of this section—
(i) is a citizen of Canada or a citizen of Mexico;
(ii) is coming to the United States under section D of Annex
1603 of the North American Free Trade Agreement to engage in
business activities at a professional level as provided by Annex
1603; and
(iii) may be admitted to engage in those activities under regula-
tions prescribed by the Attorney General after consulting with the
Secretaries of State and Labor; or
(B) is the spouse or child of an alien described by subclause (A) of
this clause if accompanying or following to join the alien.
(c) NUMERICAL LIMITATIONS ON CITIZENS OF MEXICO.—(1) The Attor-
ney General shall establish an annual numerical limitation on the number
of citizens of Mexico classified under subsection (b)(5) of this section, as
provided by Appendix 1603.D.4 of Annex 1603 of the North American Free
Trade Agreement. Subject to paragraph (2) of this subsection, the limita-
tion—
(A) may be increased after December 31, 1994, under paragraph
5(a) of section D of Annex 1603 of the Agreement; and
(B) shall cease to apply as provided by paragraph 3 of Appendix
1603.D.4.
(2) The limitation referred to in paragraph (1) of this subsection may be
increased or shall cease to apply (other than under paragraph 3 of Appendix
1603.D.4) only if—
(A) the President has obtained advice about the proposed action
from the appropriate advisory committees established under section
135 of the Trade Act of 1974 (19 U.S.C. 2155);
(B) the President has submitted a report to the Committees on the
Judiciary of the Senate and the House of Representatives that states
the action proposed to be taken, the reasons for the proposed action,
and the advice obtained under clause (A) of this paragraph;
(C) at least 60 days have passed after the President meets the re-
quirements of clauses (A) and (B) of this paragraph; and
(D) the President consults with those committees during that 60-day
period about the proposed action.
(d) ADDITIONAL REQUIREMENTS FOR CITIZENS OF MEXICO.—During
the period that Appendix 1603.D.4 of Annex 1603 of the North American
Free Trade Agreement applies, an alien who is a citizen of Mexico and en-
ters under section D of Annex 1603 must comply—
(1) for a registered nurse, with the attestation requirements of sec-
tion 2902 of this title, to the extent and in the way provided by regula-
tions prescribed by the Secretary of Labor;
(2) for all other professions set out in Appendix 1603.D.1 of Annex
1603, with the application requirements of section 2351 of this title,
to the extent and in the way provided by regulations prescribed by the
Secretary of Labor; and
(3) with the employer petition requirements of this chapter, to the
extent and in the way provided by regulations prescribed by the Attor-
ney General.
(e) LABOR DISPUTES.—An alien who is a citizen of Canada or a citizen
of Mexico and who is coming to the United States under section B, C, or
D of Annex 1603 of the North American Free Trade Agreement is not enti-
tled to be classified as a nonimmigrant under those sections if there is a
strike or lockout during a labor dispute in the occupational classification at
the alien’s place or intended place of employment, unless the alien estab-
lishes under regulations prescribed by the Attorney General that the alien’s
entry will not adversely affect the settlement of the strike or lockout or the
employment of any individual who is involved in the strike or lockout. Notice
of a decision by the Attorney General under this subsection shall be given
in the way required by paragraph 3 of Article 1603 of the Agreement.
(f) COUNTRIES WITHOUT TREATIES.—Each of the following foreign
countries shall be deemed to be a foreign country described by subsection
(b)(1) of this section if the government of the foreign country extends recip-
rocal nonimmigrant treatment to nationals of the United States:
(1) the largest country in each region (as defined by section
4105(a)(7) of this title) that—
(A) has at least one dependent area as determined for purposes
of sections 4111 and 4112 of this title; and
(B) does not have a treaty of commerce and navigation with the
United States Government.
(2) the country that—
(A) was identified as an adversely affected foreign country
under section 314 of the Immigration Reform and Control Act of
1986 (Public Law 99–603, 100 Stat. 3439);
(B) had a treaty of commerce and navigation with the United
States before 1925; and
(C) does not have a treaty of commerce and navigation with the
United States Government.
§ 2307. Philippine nationals
On a reciprocal basis secured by agreement between the Presidents of the
United States and of the Philippines, an alien is classified as a non-
immigrant under this section if the alien is—
(1) a national of the Philippines who is coming to the United States
only—
(A) to carry on an amount of trade (including trade in services
or technology) principally between the United States and the Phil-
ippines, that the Secretary of State decides, after consulting with
appropriate agencies, is substantial; or
(B) to develop and direct the operations of an enterprise in
which the alien has invested or is actively in the process of invest-
ing an amount of capital that the Secretary decides, after consult-
ing with the appropriate agencies, is substantial; or
(2) the spouse or child of an alien described by clause (1) of this
section if accompanying or following to join the alien.
§ 2308. Media representatives
On a reciprocal basis, an alien is classified as a nonimmigrant under this
section if the alien is—
(1) a representative of foreign information media who is coming to
the United States only to work as a representative of foreign informa-
tion media; or
(2) the spouse or child of an alien described by clause (1) of this
section if accompanying or following to join the alien.
§ 2309. Aliens engaged to marry citizens
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien is—
(1) engaged to marry a citizen of the United States and is coming
to the United States only to marry the citizen within 90 days after
entry; or
(2) the child of an alien described by clause (1) of this subsection
if accompanying or following to join the alien.
(b) PETITIONS TO CLASSIFY.—A visa may be granted to an alien apply-
ing to be classified as a nonimmigrant under this section only after the con-
sular officer receives a petition filed in the United States by the citizen
fiancee or fiance of the alien and approved by the Attorney General. The
petition must be in the form and contain the information the Attorney Gen-
eral prescribes by regulation. The Attorney General may approve the peti-
tion only if satisfied that the parties—
(1) previously have met in person during the 2 years before the date
the petition was filed, except that the Attorney General may waive this
requirement;
(2) intend to marry; and
(3) are legally able and willing to marry not later than 90 days after
the alien arrives in the United States.
§ 2310. Students in academic institutions and language
training programs
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning;
(B) is a student qualified to take a full course of study; and
(C) is coming to the United States temporarily and only to take a
full course of study at an established academic institution or in a lan-
guage training program designated by the alien and approved by the
Attorney General under subsection (b) of this section; or
(2) is the spouse or child of an alien described by clause (1) of this
subsection if accompanying or following to join the alien.
(b) APPROVAL
OF INSTITUTIONS
AND PROGRAMS.—(1) The Attorney
General may approve an institution or language training program referred
to in subsection (a) of this section only after—
(A) the Attorney General has consulted with the Secretary of Edu-
cation; and
(B) the institution or the place of study for the program has agreed
to report promptly to the Attorney General the termination of attend-
ance of each nonimmigrant student.
(2) The Attorney General shall withdraw the approval if the institution
or place of study fails to report promptly.
§ 2311. Students in nonacademic institutions
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning; and
(B) is coming to the United States temporarily and only to take a
full course of study (except in a language training program) at a recog-
nized nonacademic institution designated by the alien and approved by
the Attorney General under subsection (b) of this section; or
(2) is the spouse or child of an alien described by clause (1) of this
subsection if accompanying or following to join the alien.
(b) APPROVAL OF INSTITUTIONS.—(1) The Attorney General may ap-
prove an institution referred to in subsection (a) of this section only after—
(A) the Attorney General has consulted with the Secretary of Edu-
cation; and
(B) the institution has agreed to report promptly to the Attorney
General the termination of attendance of each nonimmigrant student.
(2) The Attorney General shall withdraw the approval if the institution
fails to report promptly.
§ 2312. Participants in programs designated by the Director
of the United States Information Agency
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning;
(B) is a student, scholar, trainee, teacher, researcher, leader, or simi-
lar individual in a field of specialized knowledge or skill; and
(C) is coming to the United States temporarily to teach, study, ob-
serve, conduct research, consult, or demonstrate skills in a program
designated by the Director of the United States Information Agency,
and, if coming to participate in a program of graduate medical edu-
cation or training, satisfies the requirements of subsections (b) and (c)
of this section; or
(2) is the spouse or child of an alien described by clause (1) of this
subsection if accompanying or following to join the alien.
(b) ADDITIONAL REQUIREMENTS FOR ALIENS IN MEDICAL PROGRAMS.—
The following additional requirements apply to an alien coming to the Unit-
ed States as a nonimmigrant under subsection (a)(1) of this section to par-
ticipate in a program of graduate medical education or training:
(1) A school of medicine or of another health profession accredited
by a body approved by the Secretary of Education must agree in writ-
ing to provide the graduate medical education or training under the
program for which the alien is coming to the United States or to ar-
range for an appropriate public or nonprofit private agency or institu-
tion to provide the education or training. Before making the agree-
ment, the school must be satisfied that the alien satisfies paragraph
(2) of this subsection. If the agreement is by a school of medicine, any
of its affiliated hospitals that will participate in providing the education
or training must be a party to the agreement.
(2) The alien must—
(A) have graduated from a school of medicine accredited by a
body approved by the Secretary of Education (regardless of wheth-
er the school is in the United States); or
(B)(i) have passed parts I and II of the National Board of Med-
ical Examiners Examination or an examination the Secretary of
Health and Human Services decides is equivalent;
(ii) be competent in oral and written English;
(iii) be able to adapt to the educational and cultural environ-
ment in which the alien will be receiving the education or training;
and
(iv) have adequate prior education and training to participate
satisfactorily in the program.
(3) The government of the foreign country of the alien’s nationality
or last residence must provide a written assurance satisfactory to the
Secretary of Health and Human Services that the country needs indi-
viduals with the skills the alien will acquire in the program.
(4) The alien must agree to return to the foreign country of the
alien’s nationality or last residence on completing the program.
(5) The alien must give the Attorney General annually an affidavit
(in the form prescribed by the Attorney General) attesting that the
alien—
(A) is in good standing in the program; and
(B) will return to the foreign country of the alien’s nationality
or last residence on completing the program.
(6) The alien’s participation in the program is limited to the period
typically required to complete the program, as determined by the Direc-
tor at the time the alien enters the United States. The Director shall
base the determination on criteria, established in coordination with the
Secretary of Health and Human Services, that consider the published
requirements of the medical specialty board administering the program.
However—
(A) the period may be more than 7 years only if the alien satis-
fies the Director that the foreign country to which the alien will
return on completing the program has an exceptional need for an
individual with the skills the alien will acquire in the program; and
(B) the alien may change programs once within the first 2 years
after entering the United States (or after being reclassified) as a
nonimmigrant under subsection (a) of this section if the Director
approves the change and a written assurance and an agreement
are given for the new program as provided by paragraphs (3) and
(4) of this subsection.
(c) SATISFACTION OF REQUIREMENTS BY CERTAIN MEDICAL SCHOOL
GRADUATES.—An alien who is a graduate of a medical school satisfies sub-
section (b)(2)(B)(i) of this section if the alien on January 9, 1978—
(1) was completely and permanently licensed to practice medicine in
a State; and
(2) was practicing medicine in a State.
(d) REPORT ON AFFIDAVITS.—The Director shall submit to Congress
each year a report on aliens who have submitted affidavits under subsection
(b)(5) of this section. The report shall include the name and address of each
alien, the program of graduate medical education or training in which the
alien is participating, and the status of the alien in the program.
§ 2313. Aliens employed temporarily in specialty occupa-
tions or as fashion models
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien is—
(1) coming to the United States temporarily to be employed—
(A) in a specialty occupation (except as a registered nurse dur-
ing the period specified by section 2325(c) of this title or to per-
form services described by section 2314, 2318, or 2319 of this
title) that requires theoretical and practical application of a body
of highly specialized knowledge and a bachelor’s, or higher, degree
in the specialty, or its equivalent, as a minimum for entry into the
occupation in the United States and who—
(i) is fully licensed by a State to practice the occupation
if a license is required to practice that occupation;
(ii) has completed the degree described by this subclause
(A) of this paragraph for that occupation; or
(iii) has experience in the specialty equivalent to the com-
pletion of that degree and recognition of expertise in the spe-
cialty through progressively more responsible positions related
to the specialty; and
(B) for whom the Secretary of Labor has certified to the Attor-
ney General that the employer intending to employ the alien has
filed with the Secretary an application under subsection (d) of this
section;
(2)(A) coming to the United States temporarily to be employed as
a fashion model and demonstrates distinguished merit and ability; and
(B) for whom the Secretary of Labor has certified to the Attorney
General that the employer intending to employ the alien has filed with
the Secretary an application under subsection (d) of this section; or
(3) the spouse or child of an alien described by clause (1) or (2) of
this subsection if accompanying or following to join the alien.
(b) NUMERICAL AND TIME LIMITATIONS.—(1) The total number of aliens
who may be issued visas or classified as nonimmigrants under subsection
(a)(1) and (2) of this section during a fiscal year may be not more than
65,000. Those aliens shall be issued visas or classified as a nonimmigrant
under that subsection in the order in which petitions are filed for those visas
or that classification.
(2) An alien classified as a nonimmigrant under subsection (a)(1) or (2)
of this section may be admitted to the United States for not more than 6
years.
(c) EMPLOYER PETITIONS.—(1) A visa may be granted to an alien apply-
ing to be classified as a nonimmigrant under subsection (a)(1) or (2) this
section only after the Attorney General approves a petition filed by the pro-
spective employer. The petition must be in the form and contain the infor-
mation the Attorney General prescribes. Before approving a petition, the At-
torney General shall consult with the heads of appropriate agencies. Ap-
proval of the petition does not establish by itself that the alien is a non-
immigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) EMPLOYER APPLICATION REQUIREMENT.—An alien may be classified
as a nonimmigrant under subsection (a)(1) or (2) of this section only if the
employer files an application with the Secretary of Labor as required by sec-
tion 2351 of this title.
(e) LIMITATIONS
ON CLASSIFICATION
AND ADMISSION
OF MEDICAL
SCHOOL GRADUATES.—An alien who is a graduate of a medical school and
is coming to the United States to perform services as a member of the medi-
cal profession may be classified and admitted as a nonimmigrant under sub-
section (a)(1) or (2) of this section only if the alien—
(1) has been invited by a public or nonprofit private educational or
research institution or agency in the United States to come to the
United States to teach or conduct research, or both, at or for the insti-
tution or agency; or
(2)(A) has passed the licensing examination administered by the
Federation of State Medical Boards of the United States or an exam-
ination the Secretary of Health and Human Services decides is equiva-
lent; and
(B)(i) is competent in oral and written English; or
(ii) is a graduate of a medical school that is accredited by a body
approved by the Secretary of Education (regardless of whether the
school is in the United States).
(f) INTENTION TO ABANDON RESIDENCE IN A FOREIGN COUNTRY.—In
obtaining a visa or obtaining or maintaining the classification as a non-
immigrant under in subsection (a)(1) or (2) of this section, the fact that
an alien has applied for a classification under subchapter I of chapter 43
of this title or otherwise has sought permanent residence in the United
States is not evidence of an intention to abandon a residence in a foreign
country if the alien had obtained a change of classification under section
9108 of this title to a classification as such a nonimmigrant before the
alien’s most recent departure from the United States.
§ 2314. Temporary and seasonal agricultural employees
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning; and
(B) is coming to the United States temporarily to perform temporary
or seasonal agricultural labor or services as defined by the Secretary
of Labor by regulation, including agricultural labor as defined by sec-
tion 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C.
3121(g)) and agriculture as defined by section 3(f) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203(f)); or
(2) is the spouse or child of an alien described by clause (1) of this
subsection if accompanying or following to join the alien.
(b) EMPLOYER PETITIONS.—(1) A visa may be granted to an alien apply-
ing to be classified as a nonimmigrant under subsection (a)(1) of this sec-
tion only after the Attorney General approves a petition filed by the pro-
spective employer. The petition must be in the form and contain the infor-
mation the Attorney General prescribes. Before approving a petition, the At-
torney General shall consult with the heads of appropriate agencies, includ-
ing the Secretaries of Labor and Agriculture. The Attorney General may ap-
prove the petition only if the Secretary of Labor has issued a certification
under section 2504 of this title. Approval of the petition does not establish
by itself that the alien is a nonimmigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
§ 2315. Aliens performing labor or services for which United
States workers are unavailable
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A) is not a graduate of a medical school coming to the United
States to perform services as a member of the medical profession;
(B) has a residence in a foreign country that the alien has no inten-
tion of abandoning; and
(C) is coming to the United States temporarily to perform temporary
labor or services (except labor or services described by section 2314 of
this title) for which unemployed workers able to perform the labor or
services are unavailable in the United States; or
(2) is the spouse or child of an alien described by clause (1) of this
subsection if accompanying or following to join the alien.
(b) NUMERICAL LIMITATIONS.—The total number of aliens who may be
issued visas or classified as nonimmigrants under subsection (a)(1) of this
section during a fiscal year may be not more than 66,000. Those aliens shall
be issued visas or classified as such a nonimmigrant in the order in which
petitions are filed for those visas or that classification.
(c) EMPLOYER PETITIONS.—(1) A visa may be granted to an alien apply-
ing to be classified as a nonimmigrant under subsection (a)(1) of this sec-
tion only after the Attorney General approves a petition filed by the pro-
spective employer. The petition must be in the form and contain the infor-
mation the Attorney General prescribes. Before approving a petition, the At-
torney General shall consult with the heads of appropriate agencies. Ap-
proval of the petition does not establish by itself that the alien is a non-
immigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) EMPLOYMENT IN THE VIRGIN ISLANDS.—The Attorney General may
approve a petition filed for an alien applying to be classified as a non-
immigrant under subsection (a)(1) of this section for employment in the
Virgin Islands only—
(1) if the alien is to be employed as an entertainer or athlete; and
(2) for not more than 45 days.
§ 2316. Aliens receiving training
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning; and
(B) is coming to the United States temporarily to receive training
(except graduate medical education or training) in a training program
that is not designed primarily to provide productive employment; or
(2) is the spouse or child of an alien described by clause (1) of this
section if accompanying or following to join the alien.
(b) EMPLOYER PETITIONS.—(1) A visa may be granted to an alien apply-
ing to be classified as a nonimmigrant under subsection (a)(1) of this sec-
tion only after the Attorney General approves a petition filed by the pro-
spective employer. The petition must be in the form and contain the infor-
mation the Attorney General prescribes. Before approving a petition, the At-
torney General shall consult with the heads of appropriate agencies. Ap-
proval of the petition does not establish by itself that the alien is a non-
immigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
§ 2317. Intra-company transferees
(a) GENERAL.—(1) An alien is classified as a nonimmigrant under this
section if the alien—
(A) within the 3 years before applying for admission, has been em-
ployed continuously for at least one year by a corporation or other legal
entity or an affiliate or subsidiary of the entity and is coming to the
United States temporarily to continue employment with the same em-
ployer or an affiliate or subsidiary of the entity—
(i) in an executive or managerial capacity; or
(ii) that involves a specialized knowledge of the product of the
entity, affiliate, or subsidiary and its application in international
markets or an advanced level of knowledge of processes and proce-
dures of the entity, affiliate, or subsidiary; or
(B) is the spouse or child of an alien described by clause (A) of this
paragraph if accompanying or following to join the alien.
(2) The period of admission for an alien classified as a nonimmigrant
under—
(A) paragraph (1)(A)(i) of this subsection may be not more than 7
years; and
(B) paragraph (1)(A)(ii) of this subsection may be not more 5 years.
(3) In applying paragraph (1) of this subsection, a partnership or similar
organization organized outside the United States to provide accounting serv-
ices is deemed to be an affiliate of a partnership organized in the United
States to provide accounting services if—
(A) the partnership or similar organization organized outside the
United States markets its accounting services under an internationally
recognized name under an agreement with a worldwide coordinating or-
ganization owned and controlled by the member accounting firms of
which the United States partnership is also a member; and
(B) the United States partnership markets its accounting services
under the same internationally recognized name under an agreement
with the worldwide coordinating organization.
(b) EMPLOYER PETITIONS.—(1) A visa may be granted to an alien apply-
ing to be classified as a nonimmigrant under subsection (a)(1)(A) of this
section only after the Attorney General approves a petition filed by the pro-
spective employer. The petition must be in the form and contain the infor-
mation the Attorney General prescribes. Before approving a petition, the At-
torney General shall consult with the heads of appropriate agencies. Ap-
proval of the petition does not establish by itself that the alien is a non-
immigrant.
(2) The Attorney General shall establish a procedure under which an em-
ployer that meets the requirements the Attorney General prescribes may file
a petition for more than one alien applying to be classified as a non-
immigrant under subsection (a)(1)(A) of this section instead of filing indi-
vidual petitions under paragraph (1) of this subsection for those aliens. The
procedure shall allow the expedited processing of visas for the entry of
aliens under such a petition.
(3) The Attorney General shall provide for a procedure for reviewing and
acting on petitions filed under this subsection not later than 30 days after
the date a completed petition is filed.
(4) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(c) INTENTION TO ABANDON RESIDENCE IN A FOREIGN COUNTRY.—In
obtaining a visa or obtaining or maintaining the classification as a non-
immigrant under subsection (a)(1)(A) of this section, the fact that an alien
has applied for a classification under subchapter I of chapter 43 of this title
or otherwise has sought permanent residence in the United States is not
evidence of an intention to abandon a residence in a foreign country if the
alien has obtained a change of classification under section 9108 of this title
to a classification as such a nonimmigrant before the alien’s most recent
departure from the United States.
§ 2318. Aliens with extraordinary ability or with distinction
in the arts, motion pictures, or television
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A)(i) has extraordinary ability in the sciences, education, busi-
ness, or athletics as demonstrated by sustained national or inter-
national acclaim;
(ii) is distinguished in the arts as demonstrated by sustained na-
tional or international acclaim; or
(iii) with regard to motion picture and television productions has
demonstrated a record of extraordinary achievement and whose achieve-
ments have been recognized in the field through extensive documenta-
tion; and
(B) is coming to the United States to continue work in that field
of extraordinary ability or distinction;
(2) has a residence in a foreign country that the alien has no inten-
tion of abandoning and—
(A) is coming to the United States temporarily and only to ac-
company and assist an alien classified under clause (1) of this sub-
section in the artistic or athletic performance for any specific
event;
(B) is an integral part of the actual performance; and
(C)(i) has critical skills and experience with the alien admitted
under clause (1) of this section that are not general in nature and
that cannot be performed by other individuals; or
(ii) for a motion picture or television production, has skills and
experience with the alien admitted under clause (1) of this sub-
section that are not general in nature and are critical because of
a longstanding working relationship or, for a specific production,
because significant production (including pre-production and post-
production work) will take place both inside and outside the Unit-
ed States and the continuing participation of the alien described
by this clause is essential to the successful completion of the pro-
duction; or
(3) is the spouse or child of an alien described by clause (1) or (2)
of this subsection if accompanying or following to join the alien.
(b) PERIOD OF ADMISSION.—An alien classified as a nonimmigrant under
this section may be admitted for the period the Attorney General specifies
to provide for any event for which the nonimmigrant is admitted.
(c) EMPLOYER PETITIONS.—(1) A visa may be granted to an alien apply-
ing to be classified as a nonimmigrant under subsection (a)(1) or (2) of this
section only after the Attorney General approves a petition filed by the pro-
spective employer. The petition must be in the form and contain the infor-
mation the Attorney General prescribes. Before approving a petition, the At-
torney General shall consult with the heads of appropriate agencies. Ap-
proval of the petition does not establish by itself that the alien is a non-
immigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) CONSULTATION REQUIREMENTS.—The Attorney General may approve
a petition under subsection (c)(1) of this section only after the petitioner
satisfies the consultation requirements of section 2352 of this title.
§ 2319. Athletes and entertainers
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1) has a residence in a foreign country that the alien has no inten-
tion of abandoning who—
(A)(i) performs as an athlete, individually or as a member of
a group or team, at an internationally recognized level of perform-
ance; and
(ii) is coming to the United States temporarily and only to per-
form as an athlete for a specific athletic competition;
(B)(i) performs with, or is an integral and essential part of the
performance of, an entertainment group that, except as provided
by section 2353(b)(1)(A) of this title, has been recognized inter-
nationally as being outstanding in the discipline for a sustained
and substantial period of time;
(ii) if a performer or entertainer, except as provided by section
2353(b)(1)(B) and (2) of this title, has had a sustained and sub-
stantial relationship with that group (ordinarily for at least one
year) and performs functions integral to the performance of the
group; and
(iii) is coming to the United States temporarily and only to per-
form as such a performer or entertainer or as an integral and es-
sential part of a performance;
(C)(i) performs as an artist or entertainer, individually or as a
member of a group, or is an integral part of the performance of
that group; and
(ii) is coming to the United States temporarily and only to per-
form as such an artist or entertainer or with that group under a
reciprocal exchange program between an organization in the Unit-
ed States and an organization in a foreign country that provides
for the temporary exchange of artists and entertainers; or
(D)(i) performs as an artist or entertainer, individually or as a
member of a group, or is an integral part of the performance of
that group; and
(ii) is coming to the United States temporarily and only to per-
form, teach, or coach as such an artist or entertainer or with that
group under a commercial or non-commercial program that is cul-
turally unique; or
(2) is the spouse or child of an alien described by clause (1) of this
section if accompanying or following to join the alien.
(b) PERIOD OF ADMISSION.—(1) Except as provided by paragraph (2) of
this subsection, an alien classified as a nonimmigrant under this section
may be admitted for the period the Attorney General specifies in order to
provide for any competition, event, or performance for which the non-
immigrant is admitted.
(2) An alien classified as a nonimmigrant under this section and admitted
as an individual athlete may be admitted for an initial period of not more
than 5 years during which the nonimmigrant will perform as an athlete. The
Attorney General may extend that period for an additional period of not
more than 5 years.
(c) PETITIONS.—(1) A person may petition the Attorney General for clas-
sification of an alien as a nonimmigrant under this section.
(2) A visa may be granted to an alien applying to be classified as a non-
immigrant under subsection (a)(1)(A) or (B) of this section only after the
Attorney General approves a petition filed by the prospective employer. The
petition must be in the form and contain the information the Attorney Gen-
eral prescribes. Before approving a petition, the Attorney General shall con-
sult with the heads of appropriate agencies. Approval of the petition does
not establish by itself that the alien is a nonimmigrant.
(3) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) CONSULTATION REQUIREMENTS.—The Attorney General may approve
a petition under subsection (c) of this section only after the petitioner satis-
fies the consultation requirements of section 2353 of this title.
§ 2320. Participants in international exchange programs
An alien is classified as a nonimmigrant under this section if the alien—
(1) has a residence in a foreign country that the alien has no inten-
tion of abandoning;
(2) is coming to the United States for a period of not more than
15 months to participate in an international cultural exchange program
approved by the Attorney General that provides practical training, em-
ployment, and the sharing of history, culture, and traditions of the for-
eign country of the alien’s nationality; and
(3) will be employed for the same wages and under the same working
conditions as United States workers.
§ 2321. Aliens in religious occupations
An alien is classified as a nonimmigrant under this section if the alien—
(1)(A) for the 2 years immediately before the alien’s application for
admission, has been a member of a religious denomination that has a
nonprofit religious organization in the United States; and
(B) is coming to the United States for a period of not more than
5 years to perform work described by section 137(a)(3)(ii)(I), (II), or
(III) of this title; or
(2) is the spouse or child of an alien described by clause (1) of this
section if accompanying or following to join the alien.
§ 2322. Participants in cooperative research, development,
and coproduction projects
(a) GENERAL.—On a reciprocal basis, an alien is classified as a non-
immigrant under this section if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning; and
(B) is coming to the United States for not more than 10 years to
provide services of an exceptional nature requiring merit and ability re-
lated to a cooperative research and development project or a
coproduction project provided under a government-to-government
agreement carried out by the Secretary of Defense; or
(2) is the spouse or child of an alien described by clause (1) of this
section if accompanying or following to join the alien.
(b) NUMERICAL LIMITATION.—Not more than 100 aliens classified as
nonimmigrants under this section may be admitted to the United States at
any time.
§ 2323. Participants in special education programs
(a) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning; and
(B) is coming to the United States for not more than 18 months
to participate in a special education training program that provides
practical training and experience in educating children with physical,
mental, or emotional disabilities; or
(2) is the spouse or child of an alien described by clause (1) of this
section if accompanying or following to join the alien.
(b) NUMERICAL
LIMITATION.—Not more than 50 aliens classified as
nonimmigrants under this section may be admitted to the United States in
a fiscal year.
§ 2324. Relatives of special immigrants
An alien is classified as a nonimmigrant under this section if the alien
is—
(1) the parent of an alien who is a special immigrant as defined by
section 137(a)(9) of this title, but only when the alien is a child; or
(2) a child of—
(A) a parent described by clause (1) of this section; or
(B) an alien who is a special immigrant as defined by section
137(a)(10) or (11) of this title.
§ 2325. Registered nurses
(a) DEFINITION.—In this section, ‘‘facility’’ includes an employer that
employs registered nurses in a home setting.
(b) GENERAL.—An alien is classified as a nonimmigrant under this sec-
tion if the alien—
(1)(A) is coming to the United States temporarily to perform serv-
ices as a registered nurse;
(B) has obtained a full and unrestricted license to practice profes-
sional nursing in the foreign country in which the alien obtained nurs-
ing education or has received nursing education in the United States
or Canada;
(C) has passed an appropriate examination (recognized in regula-
tions prescribed in consultation with the Secretary of Health and
Human Services) or has a full and unrestricted license under State law
to practice professional nursing in the State of intended employment;
(D) is fully qualified and eligible under the laws (including tem-
porary licensing requirements authorizing the nurse to be employed)
governing the place of intended employment to engage in the practice
of professional nursing as a registered nurse immediately on admission
to the United States and is authorized under those laws to be employed
by the facility; and
(E) is one for whom the Secretary of Labor has certified to the At-
torney General that each facility (including the petitioner under sub-
section (c)(1) of this section and each worksite, except a private house-
hold worksite, that is not the alien’s employer or controlled by the em-
ployer) at which the alien will perform the services has an attestation
on file and in effect under section 2902 of this title; or
(2) is the spouse or child of an alien described by clause (1) of this
subsection if accompanying or following to join the alien.
(c) EMPLOYER PETITIONS.—(1) A visa may be granted to an alien apply-
ing to be classified as a nonimmigrant under subsection (b)(1) of this sec-
tion only after the Attorney General approves a petition filed by the pro-
spective employer. The Attorney General may approve a petition filed under
this section only if the petition is filed during the period from September
1, 1990, through August 31, 1995. The petition must be in the form and
contain the information the Attorney General prescribes. Before approving
a petition, the Attorney General shall consult with the heads of appropriate
agencies. Approval of a petition does not establish by itself that the alien
is a nonimmigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) PERIOD OF ADMISSION.—An alien classified as a nonimmigrant under
this section may be admitted for an initial period of not more than 3 years.
The initial period may be extended for one or more periods, but the total
period of admission may not be more than 5 years (or 6 years if the Attor-
ney General decides there are extraordinary circumstances).
(e) INTENTION TO ABANDON RESIDENCE IN A FOREIGN COUNTRY.—In
obtaining a visa or obtaining or maintaining the classification as a non-
immigrant under this section, the fact that an alien has applied for a classi-
fication under subchapter I of chapter 43 of this title or otherwise has
sought permanent residence in the United States is not evidence of an in-
tention to abandon a residence in a foreign country if the alien has obtained
a change of classification under section 9108 to a classification as such a
nonimmigrant before the alien’s most recent departure from the United
States.
SUBCHAPTER II—SPECIAL REQUIREMENTS
§ 2351. Employer applications for aliens employed tempo-
rarily in specialty occupations or as fashion mod-
els
(a) GENERAL.—An alien may be classified and admitted to the United
States as a nonimmigrant under section 2313(a)(1) or (2) of this title only
if the employer files an application with the Secretary of Labor stating the
following:
(1) The employer—
(A) during the period of authorized employment, is offering and
will offer the alien classified or admitted as a nonimmigrant under
section 2313(a)(1) or (2) of this title wages that, based on the
best information available at the time the application is filed, are
at least the greater of—
(i) the actual wage level paid by the employer to all other
individuals with similar experience and qualifications for the
specific employment in question; or
(ii) the prevailing wage level of the occupational classifica-
tion in the area of employment; and
(B) will provide working conditions for the nonimmigrant that
will not adversely affect the working conditions of workers simi-
larly employed.
(2) There is no strike or lockout during a labor dispute in the occu-
pational classification at the place of employment.
(3) At the time the application was filed, the employer—
(A) provided notice of the filing of an application under this
subsection to the bargaining representative of the employer’s em-
ployees in the occupational classification and area for which aliens
are sought; or
(B) if there is no bargaining representative, posted notice of the
filing in conspicuous locations at the place of employment.
(4) There is a specification of the number of workers sought, the oc-
cupational classification in which the workers will be employed, and
wage rate and conditions under which they will be employed.
(b) PUBLIC AVAILABILITY OF APPLICATIONS AND APPLICATION LISTS.—
(1) Not later than one working day after the date on which an application
under this subsection is filed, the employer shall make available for public
examination at the employer’s principal place of business or worksite a copy
of each application filed under subsection (a) of this section and necessary
accompanying documentation.
(2) On a current basis and by employer and occupational classification,
the Secretary shall compile a list of the applications filed. That list shall
include the wage rate, number of aliens sought, period of intended employ-
ment, and the date of need. The Secretary shall make that list available for
public examination in the District of Columbia.
(c) SECRETARIAL REVIEW OF APPLICATIONS.—The Secretary shall re-
view an application only for completeness and obvious inaccuracies. Unless
the Secretary finds that the application is incomplete or obviously inac-
curate, the Secretary shall make the certification described by section
2313(a)(1)(B) or (2)(B) of this title not later than 7 days after the date
the application is filed.
(d) FAILURE TO MEET APPLICATION CONDITIONS AND MISREPRESENTA-
TIONS.—(1) The Secretary shall establish a procedure for receiving, inves-
tigating, and disposing of complaints about a petitioner’s failure to meet a
condition specified by an application submitted under subsection (a) of this
section or a petitioner’s misrepresentation of a material fact in that applica-
tion. An adversely affected person (including a bargaining representative)
may file a complaint under this subsection but the complaint must be filed
not later than 12 months after the date of the failure or misrepresentation.
The Secretary shall conduct an investigation as provided by this subsection
if there is reasonable cause to believe that a failure or misrepresentation has
occurred.
(2) Not later than 30 days after the date a complaint is filed, the Sec-
retary shall decide whether a reasonable basis exists to make a finding
under paragraph (3) or (4) of this subsection. If the Secretary decides that
a reasonable basis exists, the Secretary shall provide interested parties no-
tice and an opportunity for a hearing under section 556 of title 5 about
the complaint not later than 60 days after deciding that a reasonable basis
exists. If a hearing is requested, the Secretary shall make a finding about
the complaint not later than 60 days after the date of the hearing. The Sec-
retary may consolidate hearings on similar complaints about the same appli-
cant.
(3) If the Secretary finds, after notice and an opportunity for a hearing
under paragraph (2) of this subsection, that there has been a failure to
meet a condition of subsection (a)(2) of this section, a substantial failure
to meet a condition described by subsection (a)(3) or (4) of this section, a
willful failure to meet a condition of subsection (a)(1) of this section, or
misrepresentation of a material fact in an application—
(A) the Secretary shall notify the Attorney General of that finding
and may impose administrative remedies the Secretary decides are ap-
propriate, including a penalty of not more than $1,000 for each viola-
tion; and
(B) the Attorney General may not approve a petition filed by the em-
ployer under section 2352 of this title or subchapter I of chapter 43
for at least one year.
(4) If the Secretary finds after notice and an opportunity for a hearing
under paragraph (2) of this subsection that an employer has not paid wages
at the wage level specified under the application and required under sub-
section (a)(1) of this section, the Secretary shall order the employer to pro-
vide back pay required to comply with subsection (a)(1) in addition to any
other penalty imposed under paragraph (3) of this subsection.
§ 2352. Advisory opinions for aliens with extraordinary abil-
ity or with distinction in the arts, motion pictures,
or television
(a) GENERAL REQUIREMENTS.—(1) The Attorney General may approve
a petition—
(A) for an alien applying to be classified as a nonimmigrant under
section 2318(a)(1)(A)(i) or (ii) of this title, only after the petitioner
consults with a peer group or other person (including a labor organiza-
tion) the alien chooses with expertise in the specific field involved by
submitting with the petition an advisory opinion from that group or
person;
(B) for an alien applying to be classified as a nonimmigrant under
section 2318(a)(2)(A)–(C)(i) of this title, only after the petitioner
consults with a labor organization with expertise in the area of the
skills and experience involved by submitting with the petition with an
advisory opinion from that labor organization; or
(C) for an alien applying to be classified as a nonimmigrant under
section 2318(a)(1)(A)(iii) or (2)(C)(ii) of this title for a motion picture
or television production, after consulting with the appropriate labor or-
ganization representing the alien’s occupational peers and a manage-
ment organization in the area of the alien’s ability.
(2) An opinion by a labor organization about an alien referred to in para-
graph (1)(C) of this subsection trying to enter the United States for a mo-
tion picture or television production is advisory only. An opinion rec-
ommending denial of an application for that alien must be in writing. In
making a decision on the petition, the Attorney General shall consider the
exigencies and scheduling of the production. The Attorney General shall at-
tach any advisory opinion to that decision.
(3)(A) If a petitioner does not submit an advisory opinion from the ap-
propriate labor organization as required by paragraph (1)(A) or (B) of this
subsection, the Attorney General shall forward a copy of the petition and
supporting documents to the national office of an appropriate labor organi-
zation not later than 5 days after receiving the petition. If the employer’s
employees in the occupational classification for which the alien is being
sought have a collective bargaining representative, that representative is the
appropriate labor organization.
(B) A person or organization receiving a copy of a petition as provided
by subparagraph (A) of this paragraph has not more than 15 days after
receiving the petition to submit a written advisory opinion or provide a let-
ter stating that the person or organization has no objection. At the end of
the 15-day period, the Attorney General shall give the petitioner an oppor-
tunity, when appropriate, to provide rebuttal evidence. The Attorney Gen-
eral shall act on the petition not later than 14 days after the end of the
15-day period, or if rebuttal evidence is provided, not later than 14 days
after receiving that evidence. The Attorney General may shorten a time pe-
riod under this paragraph for emergency reasons unless the shorter period
is an unreasonable burden on a participant in the process.
(4) If a petitioner referred to in paragraph (1)(A) or (B) of this sub-
section establishes that an appropriate peer group (including a labor organi-
zation) does not exist, the Attorney General shall act on the petition without
requiring an advisory opinion.
(5) The Attorney General shall prescribe regulations to establish expe-
dited consultation procedures for nonimmigrant—
(A) artists and entertainers described by section 2318 of this title
to accommodate the exigencies and scheduling of a given production or
event; and
(B) athletes described by section 2318(a)(1) of this title in the case
of emergency circumstances, including trades during a season.
(6) Consultation with a nongovernmental entity does not authorize the
Attorney General to delegate authority under this subsection to a non-
governmental entity. The Attorney General shall give advisory opinions
under this subsection the weight the Attorney General decides, in the Attor-
ney General’s sole discretion, is appropriate.
(b) WAIVERS.—The Attorney General shall prescribe regulations to pro-
vide for the waiver of the consultation requirement under subsection
(a)(1)(A) of this section for an alien admitted as a nonimmigrant under sec-
tion 2318(a)(1)(A)(ii) of this title because of distinction in the arts and who
is trying to be readmitted to perform similar services within 2 years after
the date of a consultation under subsection (a)(1)(A) of this section. Not
later than 5 days after a waiver is provided, the Attorney General shall for-
ward a copy of the petition and supporting documents to the national office
of the appropriate labor organization.
§ 2353. Advisory opinions for athletes and entertainers
(a) GENERAL REQUIREMENTS.—(1) The Attorney General may approve
a petition for an alien applying to be classified as a nonimmigrant—
(A) under section 2319(a)(1)(A), (B), or (D) of this title, only after
the petitioner consults with a labor organization with expertise in the
specific field of athletics or entertainment involved by submitting with
the petition an advisory opinion from that labor organization; or
(B) under section 2319(a)(1)(C) of this title, only after consultation
with labor organizations representing artists and entertainers in the
United States.
(2) If a petitioner does not submit an advisory opinion from the appro-
priate labor organization required by paragraph (1)(A) of this subsection,
the Attorney General shall forward a copy of the petition and supporting
documents to the national office of an appropriate labor organization not
later than 5 days after receiving the petition. If the employer’s employees
in the occupational classification for which the alien is being sought have
a collective bargaining representative, that representative is the appropriate
labor organization.
(3) A person or organization receiving a copy of a petition as provided
by paragraph (2) of this subsection has not more than 15 days after receiv-
ing the petition to submit a written advisory opinion or provide a letter stat-
ing that the person or organization has no objection. At the end of the 15-
day period, the Attorney General shall give the petitioner an opportunity,
when appropriate, to provide rebuttal evidence. The Attorney General shall
act on the petition not later than 14 days after the end of the 15-day pe-
riod, or if rebuttal evidence is provided, not later than 14 days after receiv-
ing that evidence. The Attorney General may shorten a time period under
this paragraph for emergency reasons unless the shorter period is an unrea-
sonable burden on a participant in the process.
(4) If a petitioner referred to in paragraph (1)(A) of this subsection es-
tablishes that an appropriate peer group (including a labor organization)
does not exist, the Attorney General shall act on the petition without requir-
ing an advisory opinion.
(5) The Attorney General shall prescribe regulations to establish expe-
dited consultation procedures for nonimmigrant—
(A) artists and entertainers under section 2319 of this title to ac-
commodate the exigencies and scheduling of a given production or
event; and
(B) athletes described by section 2319(a)(1)(A) of this title in the
case of emergency circumstances, including trades during a season.
(6) Consultation with a nongovernmental entity does not authorize the
Attorney General to delegate authority under this subsection to a non-
governmental entity. The Attorney General shall give advisory opinions
under this subsection the weight the Attorney General decides, in the Attor-
ney General’s sole discretion, is appropriate.
(b) WAIVERS AND NONAPPLICATION.—(1) The Attorney General may
waive—
(A) in consideration of special circumstances, the international rec-
ognition requirement of section 2319(a)(1)(B)(i) of this title for an en-
tertainment group that is recognized nationally as being outstanding in
its discipline for a sustained and substantial period of time; and
(B) 
the 
one-year 
relationship 
requirement 
of 
section
2319(a)(1)(B)(ii) of this title for an alien who—
(i) replaces an essential member of the group, because of illness
or unanticipated or exigent circumstances; or
(ii) augments the group by performing a critical role.
(2) The one-year relationship requirement of section 2319(a)(1)(B)(ii) of
this title does not apply to 25 percent of the performers in a group.
(3) The requirements of section 2319(a)(1)(B)(i) and (ii) of this title do
not apply to an alien who performs as part of a circus or circus group or
who is an integral and essential part of the performance of that circus or
group, but only if the alien is coming to the United States to join a circus
that has been recognized nationally as outstanding for a sustained and sub-
stantial period of time or as part of such a circus.
CHAPTER 25—TEMPORARY AGRICULTURAL WORKERS
Sec.
2501.
Definitions.
2502.
Certification requirements.
2503.
Applications for certification.
2504.
Conditions for issuing certifications.
2505.
Associations of agricultural producers.
2506.
Housing.
2507.
Expedited administrative review.
2508.
Disqualification of aliens for violating conditions of prior admission.
2509.
Enforcement authority of the Secretary of Labor.
2510.
Endorsement of entry and exit documentation.
2511.
Preemption of State and local law.
2512.
Biennial reports.
2513.
Approval of regulations.
2514.
Authorization of appropriations.
§ 2501. Definitions
In this chapter—
(1) ‘‘temporary agricultural worker’’ means a nonimmigrant de-
scribed by section 2314 of this title.
(2) ‘‘United States worker’’ means an individual who is not an unau-
thorized alien (as defined by section 11101 of this title) with respect
to particular employment.
§ 2502. Certification requirements
(a) REQUIREMENTS.—The Attorney General may approve a petition filed
under section 2314 of this title by a prospective employer of an alien apply-
ing to be classified as a temporary agricultural worker only if the Secretary
of Labor, on application by the employer, has certified that—
(1) there are not sufficient United States workers who are able, will-
ing, and qualified, and who will be available at the time and place need-
ed, to perform the labor or services described by the petition; and
(2) employment of the alien to provide the labor or services will not
affect adversely the wages and working conditions of United States
workers similarly employed.
(b) REGULATIONS.—The Secretary shall prescribe regulations based on
findings in furtherance of the policy that aliens be admitted as temporary
agricultural workers only if the conditions specified by subsection (a) of this
section are satisfied.
§ 2503. Applications for certification
(a) DEADLINE FOR FILING.—The Secretary of Labor may not require
that an application for a certification under this chapter be filed more than
60 days before the first date the employer requires the labor or services of
a temporary agricultural worker.
(b) NOTICE OF DEFICIENCIES.—If an application does not meet the con-
ditions for issuing a certification (except the conditions specified by section
2502(a)(1) of this title), the Secretary shall—
(1) notify the employer in writing not later than 7 days after the
application is filed, giving the reasons the application does not meet the
conditions; and
(2) allow the employer to submit promptly an amended application.
(c) FEE.—The Secretary may prescribe by regulation a fee to cover the
reasonable costs of processing an application for certification.
§ 2504. Conditions for issuing certifications
Not later than 20 days before the labor or services are first required, the
Secretary of Labor shall issue a certification if the following conditions are
met:
(1) The conditions specified by section 2502(a) of this title are met.
(2) The employer has complied with the requirements for certifi-
cation, including requirements the Secretary prescribes for recruiting
United States workers.
(3) The Secretary concludes that the employer has made positive re-
cruitment efforts within a multi-State region of traditional or expected
labor supply in which the Secretary finds there are a significant num-
ber of qualified United States workers who, if recruited, would be will-
ing to work at the time and place needed. Positive recruitment under
this paragraph is in addition to, and shall be conducted within the
same time period as, the circulation of the employer’s job offer through
the interstate employment service system. The requirement to engage
in positive recruitment ends on the date the temporary agricultural
workers depart for the employer’s place of employment.
(4) The employer does not have, or has not been provided with refer-
rals of, qualified United States workers who have indicated their avail-
ability to perform the labor or services on the terms of a job offer
meeting the Secretary’s requirements. In considering whether a specific
qualification in a job offer is appropriate, the Secretary shall apply the
normal and accepted qualifications required by employers not employ-
ing temporary agricultural workers in the same or comparable occupa-
tions and crops.
(5) The employer has provided the Secretary with satisfactory assur-
ances that if the employment for which the certification is sought is
not covered by a State workers’ compensation law, the employer will
provide, at no cost to the worker, insurance covering injury and disease
arising out of and during the worker’s employment that will provide
benefits at least equal to those provided under the State workers’ com-
pensation law for comparable employment.
(6) There is no strike or lockout during a labor dispute that, under
regulations prescribed by the Secretary, precludes the certification.
(7) The employer employed temporary agricultural workers during
the prior 2 years, and the Secretary has decided, after notice and an
opportunity for a hearing on the record, that the employer during that
period did not substantially violate a material condition of the certifi-
cation related to the employment of nonimmigrant or United States
workers. The Secretary may decide not to approve a certification for
not more than 3 years for an employer who commits a violation de-
scribed by this paragraph.
§ 2505. Associations of agricultural producers
(a) PERMITTED FILINGS.—An association of agricultural producers using
agricultural services may file—
(1) a petition under section 2314 of this title for an alien applying
to be classified as a temporary agricultural worker; and
(2) an application for a certification under this chapter.
(b) ASSOCIATIONS ACTING AS EMPLOYERS.—If an association referred to
in subsection (a) of this section is the joint or sole employer of a temporary
agricultural worker, a certification granted under this chapter to the asso-
ciation may be used for the certified job opportunities of any of the mem-
bers of the association. The worker may be transferred among the members
to perform agricultural services of a temporary or seasonal nature for which
the certification was granted.
(c) EFFECT OF VIOLATIONS.—(1) If the Secretary of Labor has decided
that a member of an association that is a joint employer of a temporary
agricultural worker has committed an act resulting in a decision by the Sec-
retary not to approve a certification of the member under section 2504(7)
of this title, the decision applies only to that member unless the Secretary
decides that the association or another member participated in, or knew or
had reason to know of, the violation.
(2) If the Secretary has decided that an association that is a joint em-
ployer has committed an act resulting in a decision by the Secretary not
to approve a certification of the association under section 2504(7) of this
title, the decision applies only to the association unless the Secretary decides
that a member participated in, or knew or had reason to know of, the viola-
tion.
(3) If the Secretary has decided that an association, certified as the sole
employer of a temporary agricultural worker, has committed an act result-
ing in a decision by the Secretary not to approve a certification of the asso-
ciation under section 2504(7) of this title, a member of the association, dur-
ing the period the decision is in effect, may not be the beneficiary of the
services of temporary agricultural workers in the commodity and occupation
in which the worker was employed by the association whose certification was
not approved, unless the member employs the workers in the commodity and
occupation directly or through an association that is a joint employer of the
workers with the member.
§ 2506. Housing
(a) REQUIREMENT.—An employer shall provide housing for temporary
agricultural workers as provided by regulations prescribed by the Secretary
of Labor.
(b) REGULATIONS.—(1) Regulations prescribed under this section shall
allow the employer, at the employer’s option, to provide housing meeting ap-
plicable standards of the United States Government for temporary labor
camps or to secure housing that meets applicable local standards for rental
or public accommodations or other substantially similar class of habitation.
In the absence of applicable local standards, State standards for those ac-
commodations or that class of habitation shall apply. In the absence of ap-
plicable local and State standards, standards of the Government for tem-
porary labor camps shall apply.
(2) The regulations shall include specific requirements about housing for
employees principally engaged in the range production of livestock.
(3) When the prevailing practice in the area and occupation of intended
employment is to provide family housing, the employer shall provide family
housing to workers with families requesting it.
(c) EXCEPTION.—This section does not require an employer to provide
housing for workers not entitled to it under the temporary labor certifi-
cation regulations in effect on June 1, 1986.
§ 2507. Expedited administrative review
(a) PROCEDURE FOR EXPEDITED REVIEW.—Regulations prescribed by
the Secretary of Labor under this chapter shall provide for an expedited
procedure for a review of a decision of the Secretary not to approve or to
revoke a certification or, at the applicant’s request, a de novo administrative
hearing on the record on the decision.
(b) DECISIONS ON AVAILABILITY OF UNITED STATES WORKERS.—(1)
The Secretary shall make a new decision about an application for certifi-
cation under this chapter expeditiously, but not later than 72 hours after
the time the new decision is requested, if the certification originally was not
approved in any part because of the availability of able, willing, and quali-
fied United States workers and they are not available at the time the labor
or services are needed.
(2) An employer asserting that a United States worker referred to the
employer is not able, willing, or qualified has the burden of proving that
the worker is not able, willing, or qualified because of employment-related
reasons.
§ 2508. Disqualification of aliens for violating conditions of
prior admission
An alien may not be admitted to the United States as a temporary agri-
cultural worker if, during the prior 5 years, the alien was admitted as a
temporary agricultural worker and violated a term of that admission.
§ 2509. Enforcement authority of the Secretary of Labor
The Secretary of Labor may take actions necessary to ensure that em-
ployers comply with the terms of employment under this chapter, includ-
ing—
(1) imposing appropriate penalties; and
(2) seeking appropriate equitable relief, including specific perform-
ance of contractual obligations.
§ 2510. Endorsement of entry and exit documentation
The Attorney General shall provide for the endorsement of entry and exit
documentation of temporary agricultural workers necessary to carry out this
chapter and to provide notice under chapter 111 of this title.
§ 2511. Preemption of State and local law
This chapter and sections 2101 and 2314 of this title preempt State and
local law regulating the admissibility of nonimmigrant workers.
§ 2512. Biennial reports
(a) REPORTING REQUIREMENT.—Not later than November 6 of each
even-numbered year, the President shall submit a report on the temporary
agricultural worker program under this chapter to the Committees on the
Judiciary of the Senate and the House of Representatives. The report shall
include—
(1) the number of temporary agricultural workers permitted to be
employed under the program in each year;
(2) the compliance of employers and temporary agricultural workers
with the terms of the program;
(3) the impact of the program on the labor needs of United States
agricultural employers and on the wages and working conditions of
United States agricultural workers; and
(4) recommendations for changing the program, including—
(A) improving the timeliness of decisions about the admission
of temporary agricultural workers under the program;
(B) removing any economic disincentive to hiring United States
workers for jobs for which temporary agricultural workers have
been requested;
(C) improving cooperation among government agencies, employ-
ers, employer associations, workers, unions, and other worker as-
sociations to end the dependence of any industry on a constant
supply of temporary agricultural workers; and
(D) the relative benefits to United States workers and burdens
on employers of the policy of requiring employers, as a condition
for certification under the program, to continue to accept qualified
United States workers for employment after the date the tem-
porary agricultural workers depart for work with the employer.
(b) RECOMMENDATIONS CONSISTENT WITH POLICY.—The recommenda-
tions under subsection (a)(4)(D) of this section shall be made in furtherance
of the policy that aliens be admitted as temporary agricultural workers only
if the conditions specified by section 2502(a) of this title are satisfied.
§ 2513. Approval of regulations
In consultation with the Secretaries of Labor and Agriculture, the Attor-
ney General shall approve all regulations prescribed under this chapter and
section 2314 of this title.
§ 2514. Authorization of appropriations
(a) GENERAL AUTHORIZATIONS.—Necessary amounts may be appro-
priated each fiscal year to—
(1) the Secretary of Labor to make findings and issue certifications
under this chapter and section 4104(g)(2) of this title; and
(2) the Secretary of Agriculture to carry out the Secretary’s duties
and powers under section 2314 of this title related to this chapter.
(b) SPECIFIC AUTHORIZATIONS.—Not more than $10,000,000 may be ap-
propriated each fiscal year—
(1) to recruit United States workers for temporary labor and services
that otherwise might be performed by temporary agricultural workers;
and
(2) to monitor the terms under which temporary agricultural workers
and United States workers employed by the same employer are em-
ployed in the United States.
CHAPTER 27—ALIEN CREWMEMBERS
SUBCHAPTER I—GENERAL
Sec.
2701.
Providing lists.
2702.
Reports on unlawful landings.
2703.
Conditional permits to land temporarily.
2704.
Control of alien crewmembers.
2705.
Alien crewmembers afflicted with certain disabilities and diseases.
2706.
Discharging alien crewmembers.
SUBCHAPTER II—LONGSHORE WORK
2721.
Definition.
2722.
General.
2723.
Prevailing practice.
2724.
Reciprocity.
2725.
Longshore work in Alaska.
2726.
Relationship to other laws and application.
SUBCHAPTER I—GENERAL
§ 2701. Providing lists
(a) ON ARRIVAL.—Except as provided by subsection (c) of this section,
when a vessel or aircraft arrives in the United States from a place outside
the United States, the owner, agent, master, commanding officer, or con-
signee of the vessel or aircraft shall give an immigration officer at the port
of arrival a list containing—
(1)(A) the name and position of each alien crewmember on the vessel
or aircraft;
(B) information on when and where each alien crewmember was
shipped or employed; and
(C) the name of each alien crewmember who is to be paid off or dis-
charged in the port of arrival; or
(2) information the Attorney General prescribes by regulation.
(b) ON DEPARTURE.—Except as provided by subsection (c) of this sec-
tion, before a vessel or aircraft departs from a port in the United States,
the owner, agent, master, commanding officer, or consignee of the vessel or
aircraft shall give an immigration officer at the port a list containing—
(1) the name of each alien crewmember—
(A) not employed on the vessel or aircraft when it arrived but
who is leaving on the vessel or aircraft;
(B) paid off or discharged at the port; or
(C) who deserted or landed at the port; or
(2) information the Attorney General prescribes by regulation.
(c) EXCEPTION.—The Attorney General shall prescribe when a list under
this section shall be given for a vessel operating only on the Great Lakes,
the Saint Lawrence River, and a connnecting waterway.
(d) REGULATIONS ON ARRIVAL AND DEPARTURE.—The Attorney General
may prescribe by regulation when a vessel or aircraft is deemed under this
chapter to be arriving in, or departing from, the United States or a port
of the United States.
§ 2702. Reports on unlawful landings
As soon as it is discovered that an alien crewmember has landed unlaw-
fully in the United States from a vessel or aircraft, the owner, agent, mas-
ter, commanding officer, or consignee of the vessel or aircraft shall—
(1) report the unlawful landing in writing to an immigration officer;
and
(2) give the immigration officer a description of the crewmember and
information likely to lead to taking the crewmember into custody.
§ 2703. Conditional permits to land temporarily
(a) GENERAL REQUIREMENT.—An alien crewmember may land tempo-
rarily in the United States only as provided under this section or section
2705(b), 6122, or 6123 of this title.
(b) AUTHORITY TO GRANT PERMITS.—Under regulations the Attorney
General prescribes, an immigration officer may grant an alien crewmember
a conditional permit to land temporarily in the United States if the officer
finds, after inspection, that the crewmember—
(1) is a nonimmigrant under section 2305 of this title;
(2) otherwise is admissible; and
(3) has agreed to accept the permit.
(c) PERIOD OF VALIDITY.—A permit granted under subsection (b) of this
section is valid for not more than—
(1) the period (but not more than 29 days) that the vessel or aircraft
on which the alien crewmember arrived remains in port if the immigra-
tion officer is satisfied the crewmember intends to leave on that vessel
or aircraft; or
(2) 29 days if the immigration officer is satisfied the crewmember
intends to leave on another vessel or aircraft within the period for
which the crewmember is allowed to land.
(d) REVOCATION.—(1) If an alien is granted a permit for a period under
subsection (c)(1) of this section, and an immigration officer then decides the
alien is not a crewmember or does not intend to leave on the vessel or air-
craft on which the alien arrived, the immigration officer, under regulations
prescribed by the Attorney General, may—
(A) revoke the permit;
(B) take the alien into custody; and
(C) if practicable, require the master or commanding officer of the
vessel or aircraft on which the alien arrived to detain the alien on the
vessel or aircraft.
(2) The owner of the vessel or aircraft on which an alien, detained under
paragraph (1)(C) of this subsection, arrived in the United States shall pay
the costs of detaining and deporting the alien.
(3) An alien detained under paragraph (1)(C) of this subsection is not
entitled to a deportation proceeding under section 6532 of this title.
§ 2704. Control of alien crewmembers
(a) DETENTION AND DEPORTATION.—The owner, agent, master, com-
manding officer, charterer, or consignee of a vessel or aircraft arriving in
the United States from a place outside the United States shall—
(1) detain an alien crewmember on the vessel, or, at the expense of
the aircraft owner, detain an alien crewmember of an aircraft at a
place an immigration officer designates, until—
(A) an immigration officer inspects, and a medical officer exam-
ines, the alien crewmember; and
(B) the alien crewmember is—
(i) granted a conditional permit to land temporarily under
section 2703(b) of this title; or
(ii) allowed to land temporarily under section 2705(b) or
6123 of this title for medical or hospital treatment; and
(2) deport an alien crewmember if required by an immigration offi-
cer, whether before or after the crewmember is allowed to land tempo-
rarily under section 2703(b), 2705(b), or 6123 of this title.
(b) PROOF OF FAILURE TO DETAIN OR DEPORT.—Except as the Attor-
ney General prescribes by regulation, proof that the name of an alien crew-
member is not on the outgoing manifest of the vessel or aircraft on which
the crewmember arrived in the United States from a place outside the Unit-
ed States, or that the master or commanding officer of the vessel or aircraft
reported the crewmember as a deserter, is prima facie evidence of the failure
to detain or deport the crewmember.
(c) DEPORTATION ON ANOTHER VESSEL OR AIRCRAFT.—(1) If the Attor-
ney General finds that deporting an alien crewmember under this section
on the vessel or aircraft on which the crewmember arrived is impracticable
or will cause unreasonable hardship to the crewmember, the Attorney Gen-
eral may require the crewmember to be deported from any port on another
vessel or aircraft of the same owner unless the Attorney General finds de-
portation on such a vessel or aircraft to be impracticable. The owner of the
vessel or aircraft on which the crewmember arrived shall pay the costs of
deporting the crewmember as required by this subsection, including the
costs of transferring the crewmember within the United States under condi-
tions the Attorney General prescribes. The vessel or aircraft may be cleared
only after the costs are paid or the Attorney General is satisfied that pay-
ment is guaranteed.
(2) A transfer under this subsection is not a landing under this title.
§ 2705. Alien crewmembers afflicted with certain disabilities
and diseases
(a) EMPLOYMENT PROHIBITIONS.—An alien crewmember afflicted with
feeble-mindedness, insanity, epilepsy, tuberculosis, leprosy, or a dangerous
contagious disease may not be employed on a vessel or aircraft carrying pas-
sengers when the vessel or aircraft arrives in the United States from a place
outside the United States.
(b) HOSPITALIZATION AND OBSERVATION.—An alien crewmember found
on arrival at a port in the United States to be afflicted with feeble-minded-
ness, insanity, epilepsy, tuberculosis, leprosy, or a dangerous contagious dis-
ease shall be treated in a hospital designated by the immigration officer in
charge of the port. An alien crewmember suspected of being afflicted may
be removed from the vessel or aircraft on which the alien crewmember ar-
rived to an appropriate place for observation to enable an examining medical
officer to decide whether the crewmember is afflicted.
(c) PAYMENT OF COSTS.—The owner, agent, master, commanding officer,
or consignee of the vessel or aircraft on which the alien crewmember arrived
shall pay all costs incurred under subsection (b) of this section, including
burial if the crewmember dies. The costs may not be deducted from the pay
of the crewmember. The vessel or aircraft may be cleared only after the
costs are paid or payment is guaranteed and the Secretary of the Treasury
is notified by the immigration officer in charge of the port.
(d) RETURNING AN INCURABLE CREWMEMBER.—When the immigration
officer in charge of the port is satisfied that a crewmember hospitalized
under subsection (b) of this section cannot be cured within a reasonable
time, the owner of the vessel or aircraft on which the crewmember arrived
shall return the crewmember or pay the costs of returning the crewmember
under conditions the Attorney General prescribes to ensure that the crew-
member is cared for properly and the spread of contagious disease is pre-
vented.
§ 2706. Discharging alien crewmembers
A person may pay off or discharge an alien crewmember (except a crew-
member lawfully admitted for permanent residence) employed on a vessel or
aircraft arriving in the United States only with the consent of the Attorney
General.
SUBCHAPTER II—LONGSHORE WORK
§ 2721. Definition
In this subchapter, ‘‘longshore work’’—
(1) means an activity in the United States or the coastal waters of
the United States related to—
(A) loading or unloading cargo of a vessel;
(B) operating cargo-related equipment; and
(C) handling mooring lines on the dock when the vessel is made
fast or let go; but
(2) does not include loading or unloading cargo for which the Sec-
retary of Transportation has prescribed regulations under section 311
of the Federal Water Pollution Control Act (33 U.S.C. 1321), chapter
37 of title 46, section 105 or 106 of the Hazardous Materials Trans-
portation Act (49 App. U.S.C. 1804, 1805), or section 4106 of the Oil
Pollution Act of 1990 (Public Law 101–380, 104 Stat. 513) on—
(A) handling or stowing that cargo;
(B) manning, and the duties, qualifications, and training of the
officers and crewmembers of, vessels transporting that cargo; and
(C) reducing or eliminating discharge during ballasting, tank
cleaning, or handling of that cargo.
§ 2722. General
An alien crewmember may perform longshore work only as provided by
section 2723, 2724, or 2725 of this title.
§ 2723. Prevailing practice
(a) GENERAL.—(1) An alien crewmember performing a particular activity
of longshore work in or around a port is serving in a capacity required for
normal operation and service on a vessel under section 2305(a) of this title
if—
(A) each collective bargaining agreement for that port covering at
least 30 percent of the employees performing longshore work allows
that activity to be performed by alien crewmembers; or
(B)(i) there is no collective bargaining agreement for the port cover-
ing at least 30 percent of the employees performing longshore work;
and
(ii) except as provided by paragraph (2) of this subsection, an em-
ployer of the alien crewmember or the employer’s designated represent-
ative files an attestation described by subsection (b)(1) of this section
with the Secretary of Labor at least 14 days before the date the activ-
ity will be performed or, if necessary because of an unanticipated emer-
gency, not later than the date the activity will be performed.
(2) An employer must file an attestation under paragraph (1)(B)(ii) of
this subsection for a particular activity of longshore work involving the use
of an automated self-loading conveyor belt or vacuum-actuated system on
a vessel only if the Secretary finds under subsection (f)(2) of this section
that the activity is not an activity described by subsection (b)(1)(A) of this
section.
(b) ATTESTATION REQUIREMENTS.—(1) The attestation filed with the
Secretary under subsection (a) of this section shall provide evidence that—
(A) the performance of the particular activity of longshore work by
an alien crewmember is allowed under the prevailing practice at the
port at the time of the filing and that the alien crewmember is not
being employed for that activity—
(i) during a strike or lockout in a labor dispute; or
(ii) to influence an election of a bargaining representative for
employees in the port; and
(B) the owner, agent, master, commanding officer, or consignee has
given notice of the attestation—
(i) to the bargaining representative of longshore workers at the
port; or
(ii) if there is no bargaining representative, to the longshore
workers employed at the port.
(2) An attestation—
(A) expires at the end of the one-year period beginning on the date
it is filed under subsection (a) of this section; and
(B) applies to alien crewmembers arriving in the United States dur-
ing that period if the owner, agent, master, commanding officer, or
consignee states in each list provided under section 2701 of this title
that the employer continues to comply with the conditions in the attes-
tation.
(3) An owner, agent, master, commanding officer, or consignee may pro-
vide a single list under section 2701 of this title to meet the requirements
of paragraph (2)(B) of this subsection for more than one alien crewmember.
(c) PUBLIC INFORMATION.—The Secretary shall compile and make avail-
able for public examination in a timely way in the District of Columbia—
(1) information identifying each owner, agent, master, commanding
officer, and consignee that has filed a list under section 2701 of this
title for an alien crewmember classified as a nonimmigrant under sec-
tion 2305(a) of this title for whom an attestation under subsection (a)
of this section or section 2725(b) of this title is filed; and
(2) for each employer a copy of—
(A) the attestation and accompanying documentation; and
(B) each list filed for the employer under section 2701 of this
title and described by clause (1) of this subsection.
(d) COMPLAINTS.—(1) Any adversely affected person, including a bar-
gaining representative, association the Secretary decides is appropriate, or
other adversely affected person as provided under regulations of the Sec-
retary, may file a complaint—
(A) about an employer’s failure to meet conditions stated in an attes-
tation filed under subsection (a) of this section;
(B) about an employer’s misrepresentation of a material fact in the
attestation; or
(C) for longshore work described by subsection (a)(2) of this section,
that the particular activity of longshore work is not an activity de-
scribed by subsection (b)(1)(A) of this section.
(2) The Secretary shall establish a procedure for receiving, investigating,
and disposing of complaints filed under this subsection. The Secretary shall
conduct an investigation under this subsection promptly if there is reason-
able cause to believe the allegations of the complaint.
(3)(A) If the Secretary decides that reasonable cause exists to conduct
an investigation about a complaint filed under paragraph (1)(A) or (B) of
this subsection, the person making the complaint may request that the em-
ployer stop, during the hearing procedure under subsection (e) of this sec-
tion, the particular activity of longshore work attested to by the employer.
The employer shall be notified of the request and shall respond not later
than 14 days after receiving the notice.
(B) If the Secretary makes an initial decision that the complaint is sup-
ported by a preponderance of the evidence submitted, the Secretary imme-
diately shall require that the employer stop that activity until after the hear-
ing procedure under subsection (e) of this section.
(4)(A) If the Secretary decides that reasonable cause exists to conduct
an investigation about a complaint under paragraph (1)(C) of this sub-
section, the person making the complaint may request that the employer
stop, during the hearing procedure under subsection (e) of this section, the
particular activity of longshore work involved in the complaint unless the
employer files an attestation with the Secretary under subsection (a) of this
section. The employer shall be notified of the request and shall respond not
later than 14 days after receiving the notice.
(B) If the Secretary makes an initial decision that the complaint is sup-
ported by a preponderance of the evidence submitted, the Secretary imme-
diately shall require that the employer stop that activity until after the hear-
ing procedure under subsection (e) of this section, unless the employer files
an attestation under subsection (a) of this section.
(e) PROCEEDINGS.—Not later than 180 days after a complaint is filed
under subsection (d) of this section, or later for good cause shown, the Sec-
retary shall decide whether a basis exists to make a finding described by
subsection (f) of this section. The Secretary shall give interested persons no-
tice of that decision and an opportunity for a hearing on the complaint not
later than 60 days after making the decision.
(f) FINDINGS.—(1)(A) If, after notice and an opportunity for a hearing
under subsection (e) of this section, the Secretary finds that an employer
has failed to meet a condition, or has misrepresented a material fact, in an
attestation filed under subsection (a) of this section, the Secretary—
(i) shall notify the Attorney General of the finding; and
(ii) may impose other administrative remedies, including a civil pen-
alty under section 10118 of this title, the Secretary decides are appro-
priate.
(B) When the Attorney General receives notice under this paragraph, the
Attorney General shall deny any vessel owned or chartered by the employer
entry to a port of the United States for not more than one year.
(2) For longshore work described by subsection (a)(2) of this section, if
the Secretary finds, after notice and an opportunity for a hearing under
subsection (e) of this section and based on a preponderance of the evidence
submitted by any interested person, that the particular activity of longshore
work is not an activity described by subsection (b)(1)(A) of this section—
(A) the Secretary shall notify the Attorney General of the finding;
and
(B) the employer shall file an attestation under subsection (a) of this
section for that activity.
(3) When the Secretary finds that an alien crewmember is not allowed
to perform a particular activity of longshore work under the prevailing prac-
tice at a port, another attestation under subsection (a) of this section about
that activity in that port may not be filed for one year.
(g) LONGSHORE WORK
IN ALASKA.—Except as provided by section
2725(c) of this title, this section does not apply to longshore work per-
formed in Alaska.
§ 2724. Reciprocity
(a) DEFINITION.—In this section, ‘‘practice’’ means an activity normally
performed in a foreign country during the one-year period before a vessel
arrives in the United States or the coastal waters of the United States.
(b) GENERAL.—(1) An alien crewmember preforming a particular activity
of longshore work in or about a port is serving in a capacity required for
normal operation and service on a vessel under section 2305(a) of this title,
and the Attorney General shall allow an alien crewmember on a vessel to
perform a particular activity of longshore work, if—
(A) that vessel is registered in a foreign country that by law, regula-
tion, or practice does not prohibit that activity by crewmembers on
United States vessels; or
(B) nationals of a foreign country that, by law, regulation, or prac-
tice does not prohibit that activity by crewmembers on United States
vessels, hold a majority ownership interest in that vessel.
(2) The Secretary of State shall compile and annually maintain, under
section 553 of title 5, a list, by particular activity of longshore work, of for-
eign countries in which crewmembers on United States vessels are prohib-
ited by law, regulation, or practice from performing a particular activity of
longshore work.
§ 2725. Longshore work in Alaska
(a) DEFINITIONS.—In this section—
(1) ‘‘contract stevedoring companies’’ means those stevedoring com-
panies licensed to do business in Alaska that meet the requirements of
section 32 of the Longshore and Harbor Workers’ Compensation Act
(33 U.S.C. 932).
(2) ‘‘employer’’ includes any agent or representative designated by
the employer.
(b) GENERAL.—(1) An alien crewmember performing a particular activity
of longshore work at a particular location in Alaska is serving in a capacity
required for normal operation and service on a vessel under section 2305(a)
of this title if an employer of the alien crewmember files an attestation with
the Secretary of Labor at least 30 days before the date the activity will be
performed or at least 24 hours before the activity will be performed if the
employer shows that the employer reasonably could not have anticipated the
need to file an attestation for that location at that time.
(2) The attestation filed under paragraph (1) of this subsection shall pro-
vide evidence that—
(A) the employer will request from the parties to whom notice has
been given under clause (D) (ii) and (iii) of this paragraph United
States longshore workers who, under industry standards in Alaska, in-
cluding safety considerations, are qualified and available in sufficient
numbers to perform the activity at the particular time and location, ex-
cept that—
(i) when 2 or more contract stevedoring companies have signed
a joint collective bargaining agreement with a single labor organi-
zation described by clause (D)(i) of this paragraph, the employer
may request longshore workers from only one of those companies;
and
(ii) a request to a private dock operator for longshore workers
may be made only for longshore work to be performed at that dock
and only if the operator meets the requirements of section 32 of
the Longshore and Harbor Workers’ Compensation Act (33 U.S.C.
932);
(B) the employer will employ all those United States longshore work-
ers made available under clause (A) of this paragraph who, under in-
dustry standards in Alaska, including safety considerations, are quali-
fied and available in sufficient numbers and who are needed to perform
the longshore activity at the particular time and location;
(C) using alien crewmembers for that activity is not intended or de-
signed to influence an election of a bargaining representative for work-
ers in Alaska; and
(D) the employer has given notice of the attestation—
(i) to labor organizations recognized as exclusive bargaining rep-
resentatives of United States longshore workers within the mean-
ing of the National Labor Relations Act (29 U.S.C. 141 et seq.)
and that make, or intend to make, workers available at the par-
ticular location where the longshore work is to be performed;
(ii) to contract stevedoring companies that employ or intend to
employ United States longshore workers at the location; and
(iii) to operators of private docks at which the employer will use
longshore workers.
(3)(A) During the period that an attestation an employer files under
paragraph (1) of this subsection is valid, the employer must request and
employ United States longshore workers as provided under paragraph (2)
before using alien crewmembers to perform the activity specified in the at-
testation. However, an employer is not required to request United States
longshore workers from a person who has given the employer written notice
that the person does not intend to make United States longshore workers
available at the particular location where the longshore work is to be per-
formed.
(B) If a person that provided notice under subparagraph (A) of this para-
graph later gives the employer written notice that the person is prepared
to make available United States longshore workers who, under industry
standards in Alaska, including safety considerations, are qualified and avail-
able in sufficient numbers to perform the longshore activity at the particular
location where the longshore work is to be performed, the obligation of the
employer to that person under paragraph (2) (A) and (B) of this subsection
begins 60 days after the date the notice was given under this clause.
(4)(A) An employer filing an attestation under paragraph (1) of this sub-
section is not required—
(i) to hire less than a full work unit of United States longshore
workers needed to perform the longshore activity;
(ii) to provide overnight accommodations for the longshore workers
while employed; or
(iii) to provide transportation to the particular location where the
longshore activity will be performed, except where—
(I) surface transportation is available;
(II) that transportation may be accomplished safely;
(III) travel time to the vessel is not more than one-half hour
each way; and
(IV) travel distance to the vessel from the point of embarkation
is not more than 5 miles.
(B) In the case of Wide Bay, Alaska, and Klawock/Craig, Alaska, the
travel time and distance described by clause (A)(iii) of this paragraph are
extended to 45 minutes and 7.5 miles, respectively, unless the person re-
sponding to the request for longshore workers agrees to the lesser time and
distance limitations described by clause (A)(iii).
(5) Except as provided by section 2723(c)–(e) of this title, an attestation
filed under paragraph (1) of this subsection—
(A) expires at the end of the one-year period beginning on the date
specified in the attestation that the employer anticipates the longshore
work will begin; and
(B) applies to alien crewmembers arriving in the United States dur-
ing that period if the owner, agent, master, commanding officer, or
consignee states in each list provided under section 2701 of this title
that the employer continues to comply with the conditions in the attes-
tation.
(c) APPLICATION OF SECTION 2723.—(1) Except as provided by para-
graph (2) of this subsection, section 2723(b)(3)–(f)(2) of this title applies
to an attestation filed under subsection (b)(1) of this section.
(2) Section 2723 of this title applies to the use of alien crewmembers to
perform longshore work in Alaska involving the use of an automated self-
loading conveyor belt or vacuum-actuated system on a vessel.
(d) REGULATIONS.—The Secretary shall prescribe regulations necessary
to carry out this section.
§ 2726. Relationship to other laws and application
This section does not affect—
(1) the meaning or scope of longshore work under another provision
of law, a collective bargaining agreement, or an international agree-
ment; or
(2) the performance of longshore work by nationals of the United
States.
CHAPTER 29—FACILITIES EMPLOYING REGISTERED
NURSES
2901.
Definition.
2902.
Attestation requirements.
2903.
State plans.
2904.
Public availability of information.
2905.
Complaints, investigations, and penalties.
§ 2901. Definition
In this chapter, ‘‘facility’’ includes an employer that employs registered
nurses in a home setting.
§ 2902. Attestation requirements
(a) GENERAL.—Except as provided by subsection (b) of this section, a
facility seeking to employ a nonimmigrant registered nurse under section
2325 of this title must file with the Secretary of Labor an attestation stat-
ing the following:
(1) A substantial disruption in the delivery of health care services
of the facility would occur through no fault of the facility without the
services of a nonimmigrant registered nurse.
(2) Employment of a nonimmigrant registered nurse will not ad-
versely affect the wages and working conditions of other registered
nurses similarly employed.
(3) A nonimmigrant registered nurse employed by the facility will be
paid at the wage rate paid for other registered nurses similarly em-
ployed by the facility.
(4) The facility—
(A) has taken or is taking timely and significant steps to recruit
and retain sufficient registered nurses who are citizens of the
United States or immigrants authorized to perform nursing serv-
ices, to remove as quickly as reasonably possible the dependence
of the facility on nonimmigrant registered nurses; or
(B) is subject to a State plan for the recruitment and retention
of nurses approved under section 2903 of this title.
(5) There is no strike or lockout in the course of a labor dispute,
and the employment of nonimmigrant registered nurses is not intended
or designed to influence an election for a bargaining representative for
registered nurses of the facility.
(6) At the time of filing the petition under section 2325(c) of this
title, the facility has given notice of the filing to the bargaining rep-
resentative of the registered nurses employed by the facility or, if there
is no bargaining representative, to the registered nurses employed by
the facility by posting the notice in conspicuous locations.
(b) WAIVERS.—For a nonimmigrant registered nurse performing services
at a worksite (except at the employer’s worksite or at a worksite controlled
by the employer) and for whom the employer has filed an attestation under
subsection (a) of this section, the Secretary may waive the requirement to
file an attestation for the worksite as may be appropriate—
(1) to avoid duplicative attestations;
(2) in temporary, emergency situations;
(3) for information the attestor does not know; or
(4) for other good cause.
(c) FAULT IF FACILITY HAS LAID OFF NURSES.—A facility does not
meet subsection (a)(1) of this section if the facility has laid off registered
nurses within the prior year. However, a facility that lays off a registered
nurse (except a staff nurse) meets subsection (a)(1) if the facility has at-
tested that it will not replace the nurse with a nonimmigrant registered
nurse described by section 2325(b) of this section for one year after the
date of the layoff.
(d) SIGNIFICANT STEPS TO RECRUIT AND RETAIN NURSES.—(1) Each
of the following is a significant step reasonably designed to recruit and re-
tain registered nurses meeting the requirement of subsection (a)(4)(A) of
this section:
(A) operating a training program for registered nurses at the facility
or financing (or providing participation in) a training program for reg-
istered nurses elsewhere.
(B) providing career development programs and other methods of fa-
cilitating health care workers to become registered nurses.
(C) paying registered nurses at a rate higher than that currently
being paid to registered nurses similarly employed in the geographic
area.
(D) providing adequate support services to free registered nurses
from administrative and other non-nursing duties.
(E) providing reasonable opportunities for meaningful salary ad-
vancement by registered nurses.
(2) Paragraph (1) of this subsection is not an exclusive list of the steps
that may be taken to meet the requirement of subsection (a)(4)(A) of this
section. A facility is not required to take more than one step if the facility
can demonstrate that taking an additional step is not reasonable.
(e) EFFECTIVENESS OF ATTESTATION.—(1) Subject to section 2905 of
this title, an attestation under subsection (a) of this section—
(A) expires at the end of the one-year period beginning on the date
the attestation is filed with the Secretary; and
(B) applies to petitions filed during that one-year period if the facil-
ity states in each petition filed under section 2325(c) of this title that
it continues to comply with the conditions in the attestation.
(2) A facility may file a single petition to meet the requirements of this
section for more than one registered nurse.
§ 2903. State plans
The Secretary of Labor shall provide for a procedure under which a State
may submit to the Secretary of Labor a plan for the recruitment and reten-
tion of citizens of the United States and immigrants authorized to perform
nursing services as registered nurses in facilities in the State. A plan may
include counseling and educating health workers and other individuals about
employment opportunities available to registered nurses. Annually in con-
sultation with the Secretary of Health and Human Services, the Secretary
of Labor shall provide for approving or disapproving the State plan as pro-
vided by section 2902(a)(4)(B) of this title. A plan may be approved in re-
gard to a facility only if the plan provides for taking significant steps de-
scribed by section 2902(a)(4)(A) of this title to recruit and retain registered
nurses at that facility.
§ 2904. Public availability of information
The Secretary of Labor shall compile and make available for public exam-
ination in a timely manner in the District of Columbia—
(1) a list of facilities that have filed petitions to employ non-
immigrant registered nurses applying to be classified under section
2325 of this title; and
(2) for each facility, a copy of the petitions, attestations, and accom-
panying documentation filed by each facility.
§ 2905. Complaints, investigations, and penalties
(a) COMPLAINTS
AND INVESTIGATIONS.—(1) The Secretary of Labor
shall establish a procedure for receiving, investigating, and disposing of
complaints filed about a facility’s failure to satisfy a condition attested to,
or a facility’s misrepresentation of a material fact, in an attestation.
(2) Any person adversely affected by an attestation under section 2902(a)
of this title, including a bargaining representative, association the Secretary
decides is appropriate, or other adversely affected person, may file a com-
plaint with the Secretary. The Secretary shall conduct an investigation if
there is reasonable cause to believe that the facility does not meet a condi-
tion attested to.
(3) Not later than 180 days after a complaint is filed, the Secretary shall
decide whether a basis exists to make a finding described by subsection (b)
of this section. If the Secretary decides that a basis exists, the Secretary
shall give notice of that decision to the interested parties and an opportunity
for a hearing on the complaint not later than 60 days after making the deci-
sion.
(b) FINDINGS AND PENALTIES.—(1) If the Secretary finds, after notice
and an opportunity for a hearing, that a facility has failed to satisfy a con-
dition attested to or has misrepresented a material fact in an attestation,
the Secretary—
(A) shall notify the Attorney General of the finding;
(B) may impose other administrative remedies, including a civil pen-
alty of not more than $1,000 for each violation; and
(C) if the facility has not paid the prevailing wage as attested to
under section 2902(a)(3) of this title, shall order the facility to pay an
amount of back wages necessary to comply with section 2902(a)(3).
(2) For at least one year after receiving notice under paragraph (1)(A)
of this subsection, the Attorney General may not approve a petition filed
under subsection 2325(c) of this title by that facility for the employment
of a nonimmigrant registered nurse.
PART B—IMMIGRANTS
CHAPTER 41—NUMERICAL LIMITATIONS
Sec.
4101.
General requirements.
4102.
Annual worldwide numerical limitations.
4103.
Visa allocation for family-sponsored immigrants.
4104.
Visa allocation for employment-based immigrants.
4105.
Visa allocation for diversity immigrants.
4106.
Special immigrants having honorable military service.
4107.
Special immigrants employed in Panama.
4108.
Status of spouses and children.
4109.
Estimating number of visas to be granted.
4110.
Pilot program.
4111.
Limitations on admissions from individual foreign countries.
4112.
Charging immigrants to foreign countries.
4113.
Burden of proof.
§ 4101. General requirements
Except for aliens described by section 4102(d) of this title, an alien may
be granted an immigrant visa or otherwise become an alien lawfully admit-
ted for permanent residence only if—
(1)(A) the alien is a family-sponsored immigrant described by section
4103(b)–(e) of this title or admitted under section 4311(a)(1) of this
title because a visa previously was granted to the accompanying parent
under section 4103(b)–(e) of this title; and
(B) the numerical limitations of section 4102(a) of this title are not
exceeded;
(2)(A) the alien is an employment-based immigrant described by sec-
tions 4104(b)–(f) and 4106(a) of this title or admitted under section
4311(a)(1) of this title because a visa previously was granted to the
accompanying parent under section 4104(b)–(f) or 4106(a) of this title;
and
(B) the numerical limitations of section 4102(b) of this title are not
exceeded; or
(3)(A) for fiscal years beginning after September 30, 1994, the alien
is a diversity immigrant described by section 4105(c)–(h) of this title
or admitted under section 4311(a)(1) of this title because a visa pre-
viously was granted to the accompanying parent under section
4105(c)–(h) of this title; and
(B) the numerical limitations of section 4102(c) of this title are not
exceeded.
§ 4102. Annual worldwide numerical limitations
(a) FAMILY-SPONSORED IMMIGRANTS.—(1) The worldwide numerical lim-
itation for family-sponsored immigrants for a fiscal year is the greater of—
(A)(i) 480,000 (except that for the fiscal year ending September 30,
1994, the maximum number is 465,000); minus
(ii) the number of aliens described by subsection (d)(6)–(8) of this
section granted immigrant visas or who otherwise became aliens law-
fully admitted for permanent residence in the prior fiscal year; plus
(iii) any difference between the maximum number of employment-
based immigrant visas that could have been granted and the number
that were granted during the prior fiscal year; or
(B) 226,000.
(2) In each of the first 3 quarters of a fiscal year, the number of aliens
granted visas and otherwise becoming aliens lawfully admitted for perma-
nent residence as family-sponsored immigrants may not be more than 27
percent of the numerical limitation computed under paragraph (1) of this
section for that fiscal year.
(b) EMPLOYMENT-BASED IMMIGRANTS.—(1) The worldwide numerical
limitation for employment-based immigrants for a fiscal year is—
(A) not more than 140,000; plus
(B) any difference between the maximum number of family-spon-
sored immigrant visas that could have been granted and the number
that were granted during the prior fiscal year.
(2) In each of the first 3 quarters of a fiscal year, the number of aliens
granted visas and otherwise becoming aliens lawfully admitted for perma-
nent residence as employment-based immigrants may not be more than 27
percent of the numerical limitation computed under paragraph (1) of this
section for that fiscal year.
(c) DIVERSITY IMMIGRANTS.—(1) The worldwide numerical limitation for
diversity immigrants for a fiscal year is 55,000.
(2) In each of the first 3 quarters of a fiscal year, the number of aliens
granted visas and otherwise becoming aliens lawfully admitted for perma-
nent residence as diversity immigrants may not be more than 27 percent
of the numerical limitation computed under paragraph (1) of this section
for that fiscal year.
(d) NONAPPLICATION.—The numerical limitations of this section do not
apply to—
(1) a special immigrant as defined by section 137(a)(1) or (2) of this
title;
(2) an alien admitted under section 5105 of this title or whose status
is changed under section 5107 of this title;
(3) an alien who becomes lawfully admitted for permanent residence
under chapter 93 of this title or section 210 or 210A of the Immigra-
tion and Nationality Act (ch. 477, 66 Stat. 163);
(4) an alien whose deportation is suspended under section 6538(a)
of this title;
(5) an alien whose status is changed to that of an alien lawfully ad-
mitted for permanent residence under section 9104 of this title;
(6) an immediate relative;
(7) an alien admitted under section 4311(a)(1) of this title because
the accompanying parent is an immediate relative previously granted
a visa; and
(8) an alien born to an alien lawfully admitted for permanent resi-
dence during a temporary visit outside the United States.
§ 4103. Visa allocation for family-sponsored immigrants
(a) GENERAL.—Aliens subject to the worldwide numerical limitation of
section 4102(a) of this title for qualified family-sponsored immigrants shall
be allocated visas each fiscal year as provided by this section.
(b) UNMARRIED SONS AND DAUGHTERS OF CITIZENS.—Not more than
23,400 visas, plus visas not required under subsection (e) of this section,
shall be allocated to unmarried sons and unmarried daughters of citizens
of the United States.
(c) FAMILIES
OF
ALIENS
LAWFULLY
ADMITTED.—Not more than
114,200 visas, plus the number by which the worldwide numerical limitation
is more than 226,000, plus visas not required under subsection (b) of this
section, shall be allocated to the spouses, children, and unmarried sons and
unmarried daughters (but not children) of aliens lawfully admitted for per-
manent residence. At least 77 percent of visas allocated under this sub-
section shall be made available to those spouses and children.
(d) MARRIED SONS AND DAUGHTERS OF CITIZENS.—Not more than
23,400 visas, plus visas not required under subsections (b) and (c) of this
section, shall be allocated to married sons and married daughters of citizens
of the United States.
(e) BROTHERS AND SISTERS OF CITIZENS.—Not more than 65,000 visas,
plus visas not required under subsections (b)–(d) of this section, shall be
allocated to brothers and sisters of citizens of the United States who are
at least 21 years of age.
§ 4104. Visa allocation for employment-based immigrants
(a) GENERAL.—Aliens subject to the worldwide numerical limitation of
section 4102(b) of this title for qualified employment-based immigrants
shall be allocated visas each fiscal year as provided by this section.
(b) PRIORITY WORKERS.—(1) A number of visas equal to not more than
28.6 percent of the worldwide numerical limitation of section 4102(b) of this
title, plus visas not required under subsections (e) and (f) of this section,
shall be allocated to the following aliens:
(A) a qualified immigrant—
(i) having extraordinary ability in the sciences, arts, education,
business, or athletics that has been demonstrated by sustained na-
tional or international acclaim;
(ii) whose achievements have been recognized in the field
through extensive documentation;
(iii) who is seeking to enter the United States to continue work
in the area of extraordinary ability; and
(iv) whose entry will benefit the United States substantially.
(B) a qualified immigrant—
(i) recognized internationally as outstanding in a specific aca-
demic area;
(ii) with at least 3 years of teaching or research experience in
the academic area; and
(iii) who is seeking to enter the United States for a tenured (or
tenure-track) position in a university or institution of higher edu-
cation to teach in the academic area, for a comparable position
with a university or institute of higher education to conduct re-
search in the area, or for a comparable position to conduct re-
search in the area with a department, division, or institute of a
private employer that employs at least 3 individuals full-time in
research activities and has achieved documented accomplishments
in an academic field.
(C) a qualified immigrant—
(i) who, in the 3 years prior to the application for classification
and admission to the United States under this paragraph, has
been employed for at least one year by an entity or an affiliate
or subsidiary of the entity; and
(ii) who is seeking to enter the United States to continue to pro-
vide services to the same employer, or an affiliate or subsidiary of
the employer, in a managerial or executive capacity.
(2) In applying paragraph (1)(C) of this subsection, a partnership or
similar organization organized outside the United States to provide account-
ing services is deemed to be an affiliate of a partnership organized in the
United States to provide accounting services if—
(A) the partnership or similar organization organized outside the
United States markets its accounting services under an internationally
recognized name under an agreement with a worldwide coordinating or-
ganization owned and controlled by the member accounting firms of
which the United States partnership is also a member; and
(B) the United States partnership markets its accounting services
under the same internationally recognized name under an agreement
with the worldwide coordinating organization.
(c) MEMBERS OF PROFESSIONS.—(1) A number of visas equal to not
more than 28.6 percent of the worldwide numerical limitation of section
4102(b) of this title, plus visas not required under subsection (b) of this
section, shall be allocated to qualified immigrants—
(A) 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 benefit substantially the economy, cul-
tural or educational interests, or welfare of the United States; and
(B) whose services in the sciences, arts, professions, or business are
sought by an employer in the United States.
100
(2) An alien may be granted an immigrant visa under this subsection only
if the consular officer has received the decision and certification of the Sec-
retary of Labor under subsection (g)(2) of this section.
(3) When the Attorney General considers it to be in the interest of the
United States, the Attorney General may waive the requirement of para-
graph (1) of this subsection that an alien’s services in the sciences, arts,
professions, or business be sought by an employer in the United States.
(4) Possession of a degree, diploma, certificate, or similar award from an
institution of learning, a license to practice, or certification for a profession
or occupation is not sufficient evidence by itself under paragraph (1) of this
subsection that an immigrant has exceptional ability.
(d) SKILLED WORKERS, PROFESSIONALS, AND OTHER WORKERS.—(1)
Except as provided by paragraph (2) of this subsection, a number of visas
equal to not more than 28.6 percent of the worldwide numerical limitation
of section 4102(b) of this title, plus visas not required under subsections
(b) and (c) of this section, shall be allocated to the following aliens not de-
scribed by subsection (c)(1) of this section:
(A) a qualified immigrant who is capable, when petitioning for classi-
fication under this subsection, of performing skilled labor that requires
at least 2 years training or experience, that is not temporary or sea-
sonal, and for which qualified workers are not available in the United
States.
(B) a qualified immigrant who holds a baccalaureate degree and is
a member of a profession.
(C) a qualified immigrant capable, when petitioning for classification
under this subsection, of performing unskilled labor that is not tem-
porary or seasonal and for which qualified workers are not available in
the United States.
(2) Not more than 10,000 of the visas allocated under this subsection in
a fiscal year are available for immigrants described by paragraph (1)(C) of
this subsection.
(3) An alien may be granted an immigrant visa under this subsection only
if the consular officer has received the decision and certification of the Sec-
retary of Labor under subsection (g)(2) of this section.
(e) CERTAIN SPECIAL IMMIGRANTS.—A number of visas equal to not
more than 7.1 percent of the worldwide numerical limitation of section
4102(b) of this title shall be allocated to qualified special immigrants as de-
fined by section 137(a)(3)–(13) of this title, except that not more than
5,000 of those visas may be allocated in a fiscal year to special immigrants
as defined by section 137(a)(3)(A)(ii)(II) and (III) of this title.
(f) EMPLOYMENT CREATION.—(1) In this subsection—
101
(A) ‘‘targeted employment area’’ means, at the time of investment,
a rural area or an area that has experienced unemployment that is at
least 150 percent of the national average.
(B) ‘‘rural area’’ means an area not in a metropolitan statistical
area or not in the outer boundary of a city or town having a popu-
lation, based on the latest United States decennial census, of at least
20,000.
(2) A number of visas equal to not more than 7.1 percent of the world-
wide numerical limitation of section 4102(b) of this title shall be allocated
to qualified immigrants seeking to enter the United States to engage in a
new commercial enterprise—
(A) that the alien has established;
(B) in which the alien has invested after November 29, 1990, or is
actively in the process of investing, at least $1,000,000; and
(C) that will benefit the United States economy and create full-time
employment for at least 10 United States citizens, aliens lawfully ad-
mitted for permanent residence, or other immigrants lawfully author-
ized to be employed in the United States, except the qualified immi-
grant and the qualified immigrant’s spouse, sons, and daughters.
(3) At least 3,000 of the visas allocated under paragraph (1) of this sub-
section in each fiscal year shall be reserved for qualified immigrants who
establish a new commercial enterprise described by paragraph (1) that will
create employment in a targeted employment area.
(4)(A) In consultation with the Secretaries of Labor and State, the Attor-
ney General may prescribe regulations increasing the amount specified by
paragraph (2)(B) of this subsection.
(B) For an investment made in a targeted employment area, the Attorney
General may specify that the amount of capital required under paragraph
(2)(B) of this subsection be less than, but at least 50 percent of, the
amount specified by paragraph (2)(B).
(C) For an investment made in a metropolitan statistical area that at the
time of investment is not a targeted employment area and has an unemploy-
ment rate significantly below the national average, the Attorney General
may specify that the amount of capital required under paragraph (2)(B) of
this subsection be more than, but not more than 3 times, the amount speci-
fied in paragraph (2)(B).
(g) ADDITIONAL
REQUIREMENTS
FOR
EMPLOYMENT-BASED
IMMI-
GRANTS.—(1) An alien applying for a visa under subsection (c) or (d) of
this section who is a graduate of a medical school not accredited by an en-
tity approved by the Secretary of Education and who is coming to the Unit-
102
ed States principally to perform services as a member of the medical profes-
sion may be granted the visa only if the alien—
(A) has passed parts I and II of the National Board of Medical Ex-
aminers Examination or an examination the Secretary of Health and
Human Services decides is equivalent, or on January 9, 1978, was fully
and permanently licensed to practice medicine in a State and was prac-
ticing medicine in a State on that date; and
(B) is competent in oral and written English.
(2) An alien applying for a visa under subsection (c) or (d) of this section
to perform skilled or unskilled labor may be granted the visa only if the
Secretary of Labor decides and certifies to the Secretary of State and the
Attorney General that—
(A) there are not enough workers who are able, willing, qualified (or
equally qualified if the alien is a member of the teaching profession or
has exceptional ability in the sciences or arts), and available when the
alien applies for the visa and admission and where the alien is to per-
form that labor; and
(B) employment of the alien will not affect adversely the pay and
working conditions of similarly employed workers in the United States.
(3) Before making a decision and certification under paragraph (2) of
this subsection, the Secretary of Labor shall provide that—
(A) a certification may be made only if the applicant, when filing the
application, has provided notice of the filing to the bargaining rep-
resentative of the employer’s employees in the occupational classifica-
tion and area for which aliens are sought or, if there is no bargaining
representative, to employees employed at the facility through posting at
conspicuous locations; and
(B) any person may submit documentary evidence related to the ap-
plication, including information on available workers, pay and working
conditions, and the employer’s failure to meet conditions of employing
alien workers and co-workers.
§ 4105. Visa allocation for diversity immigrants
(a) DEFINITIONS.—In this section—
(1) ‘‘high-admission foreign country’’ means a foreign country for
which the number determined under subsection (c) of this section is
more than 50,000.
(2) ‘‘high-admission region’’ means a region for which the total of
the numbers determined under subsection (c) of this section for foreign
countries in the region is more than one-sixth of the total of the num-
bers for all foreign countries.
103
(3) ‘‘low-admission foreign country’’ means a foreign country that is
not a high-admission foreign country.
(4) ‘‘low-admission region’’ means a region that is not a high-admis-
sion region.
(5) Northern Ireland is deemed to be a separate foreign country.
(6) an overseas dependent area of a foreign country is deemed to be
part of the foreign country.
(7) the area in each of the following is a separate region:
(A) Africa.
(B) Asia.
(C) Europe.
(D) North America, except Mexico.
(E) Oceania.
(F) South America, Mexico, Central America, and the Carib-
bean.
(b) GENERAL.—Aliens subject to the worldwide numerical limitations of
section 4102(c) of this title for qualified diversity immigrants shall be allo-
cated visas for each fiscal year as provided by this section.
(c) DETERMINATION OF NUMBERS OF CERTAIN ALIENS.—For the most
recent prior 5-year period for which information is available, the Attorney
General shall determine the total number of aliens who are natives of each
foreign country and who—
(1) were admitted or otherwise acquired the status of an alien law-
fully admitted for permanent residence (except under this section); and
(2) were subject to the numerical limitations for family-sponsored
and employment-based immigrants under sections 4103 and 4104 of
this title or were admitted or otherwise acquired the status of an alien
lawfully admitted for permanent residence as an alien described by sec-
tion 4102(d)(6)–(8) of this title.
(d) IDENTIFICATION.—The Attorney General shall identify each high-
admission foreign country and region and each low-admission country and
region.
(e) PERCENTAGE AND RATIO DETERMINATIONS.—The Attorney General
shall determine—
(1) the percentage of the total of the number determined under sub-
section (c) of this section that applies to foreign countries in high-
admission regions;
(2) based on available estimates for each region, the total population
of each region, excluding the population of any high-admission foreign
country;
104
(3) for each low-admission region, the ratio of the population of the
region determined under clause (2) of this subsection to the total popu-
lation determined under clause (2) for all low-admission regions; and
(4) for each high-admission region, the ratio of the population of the
region determined under clause (2) of this subsection to the total popu-
lation determined under clause (2) for all high-admission regions.
(f) ALLOCATION OF VISAS.—(1) The percentage of visas allocated under
this section to natives of a high-admission foreign country is 0.
(2) Except as provided by subsection (g) of this section, the percentage
of visas allocated under this section to natives (except natives of a high-
admission foreign country) in a low-admission region is the product of—
(A) the percentage determined under subsection (e)(1) of this sec-
tion; multiplied by
(B) the population ratio for the region determined under subsection
(e)(3) of this section.
(3) Except as provided by subsection (g) of this section, the percentage
of visas allocated under this section to natives (except natives of a high-
admission foreign country) in a high-admission region is the product of—
(A) 100 percent minus the percentage determined under subsection
(e)(1) of this section; multiplied by
(B) the population ratio for the region determined under subsection
(e)(4) of this section.
(g) REDISTRIBUTION OF VISAS AND LIMITATION.—(1) Except as pro-
vided by paragraph (2) of this subsection, if the Secretary of State esti-
mates that the number of immigrant visas to be granted for a fiscal year
to natives in a region under this section will be less than the number of
immigrant visas allocated for the fiscal year to those natives under this sec-
tion, the excess visa numbers shall be made available to natives (except na-
tives of a high-admission foreign country) of the other regions in proportion
to the percentages specified in subsection (f)(2) and (3) of this section.
(2) The percentage of visas allocated under this section for a fiscal year
to natives of a single foreign country may not be more than 7 percent of
the total number of visas allocated under this section for the fiscal year.
(h) REQUIREMENT OF EDUCATION OR WORK EXPERIENCE.—An alien is
eligible for a visa under this section only if the alien—
(1) has at least a high school education or its equivalent; or
(2) not later than 5 years after the date of the application for a visa
has at least 2 years of work experience in an occupation requiring at
least 2 years of training or experience.
105
(i) MAINTAINING INFORMATION.—The Secretary of State shall maintain
information on the age, occupation, education level, and other relevant char-
acteristics of immigrants granted visas under this section.
§ 4106. Special immigrants having honorable military serv-
ice
(a) TREATY AND AGREEMENT LIMITATION.—(1) The number of immi-
grant visas allocated in a fiscal year to special immigrants as defined by
section 137(a)(13) of this title (except the spouse and children of such an
immigrant) may not be more than—
(A) 2,000 for aliens who are nationals of a foreign country for which
there was a treaty or agreement in effect on October 1, 1991, that
authorized and limited the number of aliens who are nationals of the
foreign country who may enlist each year in the armed forces of the
United States; and
(B) 100 for aliens who are nationals of another foreign country.
(2) This subsection does not apply to individuals who met the definition
of section 137(a)(13) on October 1, 1991.
(b) NONAPPLICATION OF NUMERICAL LIMITATIONS.—(1) Except as pro-
vided by paragraph (2) of this subsection, the numerical limitations of sec-
tions 4104 and 4111(a) and (b)(3) and (4) of this title do not apply to im-
migrant visas made available to special immigrants as defined by section
137(a)(13) of this title.
(2) The number of visas allocated in a fiscal year—
(A) under subsections (b), (c), and (d) of section 4104 of this title
shall each be reduced by one-third of the number of visas allocated in
the prior fiscal year to special immigrants as defined by section
137(a)(13) of this title;
(B) to natives of a foreign country under section 4111(a) and (b)(3)
and (4) of this title shall be reduced by the number of visas allocated
in the prior fiscal year to special immigrants as defined by section
137(a)(13) who are natives of the foreign country; and
(C) under subsections (b), (c), and (d) of section 4104 for a foreign
country subject to section 4111(b)(1) and (2) of this title in that fiscal
year and the prior fiscal year shall be reduced by one-third of the num-
ber of visas allocated in the prior fiscal year to special immigrants as
defined by section 137(a)(13) who are natives of the foreign country.
§ 4107. Special immigrants employed in Panama
Not more than 15,000 aliens may be admitted to the United States as
special immigrants as defined by section 137(a)(5)–(7) of this title. Not
more than 5,000 aliens may be admitted in a fiscal year as special immi-
grants as defined by section 137(a)(5)–(7).
106
§ 4108. Status of spouses and children
The spouse or child (as defined by section 110(a)(1)–(5) of this title) ac-
companying or following to join an alien who is in a class described by sec-
tion 4103, 4104, 4105, or 4106 of this title is entitled to be placed in the
same class and preference order as the alien if the spouse or child otherwise
is not entitled to immigrant status and the immediate granting of a visa
under section 4103, 4104, 4105, or 4106.
§ 4109. Estimating number of visas to be granted
In carrying out sections 4103–4106, 4108, and 4313(a) and (b) of this
title, the Secretary of State may make estimates of the anticipated number
of immigrant visas to be granted during any quarter of a fiscal year under
each class of sections 4103–4106 of this title. The Secretary may rely on
those estimates in authorizing the granting of those visas.
§ 4110. Pilot program
(a) ESTABLISHMENT OF PROGRAM AND ALLOCATION OF VISAS.—The
Secretary of State, with the Attorney General, shall set aside 300 visas each
year for 5 years from the visas otherwise available under section 4104(f)
of this title for a pilot program to carry out section 4104(f). The program
shall include a regional center in the United States for promoting economic
growth, including increased export sales, improved regional productivity, job
creation, and increased domestic capital investment. The visas are allocated
for aliens eligible for admission under section 4104(f) and spouses and chil-
dren eligible under this title to accompany or follow to join the alien.
(b) DETERMINATION OF NUMBER OF JOBS CREATED.—In establishing
compliance with section 4104(f)(2)(C) of this title and notwithstanding the
requirements of section 204.6 of title 8, Code of Federal Regulations, the
Attorney General shall allow aliens admitted under the program to establish
reasonable methodologies for determining the number of jobs created by the
program, including jobs estimated to have been created indirectly through
revenue produced from increased exports resulting from the program.
§ 4111. Limitations on admissions from individual foreign
countries
(a) TOTAL NUMBER OF VISAS AVAILABLE IN A FISCAL YEAR.—(1) Ex-
cept as provided by this section, not more than 7 percent of the total num-
ber of immigrant visas allocated under sections 4103, 4104, and 4106 of
this title in a fiscal year are allocated to natives of a foreign country, and
not more than 2 percent of the total number are allocated to natives of a
dependent area.
(2) If, because of the application of paragraph (1) of this subsection to
at least one foreign country or dependent area, the total number of visas
allocated under sections 4103, 4104, and 4106 of this title for a calendar
107
quarter is more than the number of qualified immigrants who otherwise may
be granted a visa, paragraph (1) does not apply to visas allocated to any
such foreign country or dependent area during the remainder of the cal-
endar quarter.
(3) Except for the United States and American Samoa, an independent
country, self-governing dominion, or territory under the international trust-
eeship system of the United Nations is a foreign country under this sub-
section when approved by the Secretary.
(4) Approval is deemed to have been given under paragraph (3) of this
subsection to—
(A) Taiwan (China); and
(B) Hong Kong.
(5) The Secretary of State shall specify the foreign country to which any
other inhabited land is to be attributed. The Secretary shall issue appro-
priate instructions to diplomatic and consular offices when the territorial
limits of a foreign country change and the Secretary recognizes the change.
(b) ALLOCATION WHEN MAXIMUM NUMBER OF VISAS ALLOCATED.—(1)
If the total number of immigrant visas allocated under sections 4103, 4104,
and 4106 of this title to natives of a foreign country or dependent area is
more than the applicable numerical limitation established under subsection
(a)(1) of this section in a fiscal year, visa numbers for natives of that coun-
try or area shall be allocated under sections 4103, 4104, and 4106 (to the
extent practicable and otherwise consistent with this section and sections
4103, 4104, and 4106) so that—
(A) the ratio of the visa numbers allocated under section 4103 of
this title to the visa numbers made available under sections 4104 and
4106 of this title equals the ratio of the worldwide numerical limita-
tions of section 4102(a) of this title to the worldwide numerical limita-
tion under section 4102(b) of this title;
(B) except as provided by paragraphs (3) and (4) of this subsection,
the proportion of the visa numbers allocated under each of subsections
(b), (c), (d), and (e) of section 4103 of this title equals the ratio of
the total number of visas allocated under each of those subsections to
the total number of visas allocated under section 4103; and
(C) the proportion of the visa numbers allocated under each of sub-
sections (b), (c), (d), (e), and (f) of section 4104 of this title equals
the ratio of the total number of visas allocated under each of those sub-
sections to the total number of visas allocated under sections 4104 and
4106.
(2) Paragraph (1) of this subsection does not limit the number of visas
that may be granted—
108
(A) to natives of a foreign country or dependent area under section
4103 of this title if there is insufficient demand for visas for those na-
tives under sections 4104 and 4106 of this title;
(B) to natives of a foreign country or dependent area under sections
4104 and 4106 of this title if there is insufficient demand for visas for
those natives under section 4103 of this title; or
(C) under paragraph (3)(A) of this subsection.
(3) Of the visa numbers allocated under section 4103(c) of this title in
a fiscal year to qualified immigrants who are the spouses and children of
aliens lawfully admitted for permanent residence—
(A) 75 percent of the 77 percent of the total number of visas allo-
cated to those immigrants shall be granted without regard to the nu-
merical limitation established under subsection (a)(1) of this section;
and
(B) 25 percent of the 77 percent shall be allocated for a foreign
country or dependent area subject to paragraph (1) of this subsection
only to the extent the total number of visas granted under subpara-
graph (A) of this paragraph to natives of the country or area is less
than 77 percent of the maximum number of visas that may be allocated
under section 4103(c) of this title to immigrants who are natives of the
country or area under section 4103(c) consistent with paragraph (1).
(4) For a foreign country or dependent area to which paragraph (1) of
this subsection applies—
(A) the number of immigrant visas that may be allocated under sec-
tion 4103(c) of this title to natives of the country or area who are
qualified immigrants and the unmarried sons and unmarried daughters
(but not children) of aliens lawfully admitted for permanent residence
may not be more than the greater of—
(i) 23 percent of the maximum number of visas that may be al-
located under section 4103(c) of this title to immigrants of the
country or area described by section 4103(c) consistent with para-
graph (1) of this subsection; or
(ii) the number, if any, by which the maximum number of visas
that may be allocated under section 4103(c) of this title to immi-
grants of the country or area described by section 4103(c) is more
than the number of visas granted under section 4103(c) to quali-
fied immigrants who are the spouses and children of aliens law-
fully admitted for permanent residence; and
(B) if the total number of visas granted under section 4103(c) of
this title is more than the maximum number of visas that may be allo-
cated to immigrants of the country or area under section 4103(c), all
109
visas are deemed to have been required for the preferences specified in
section 4103(b) and (c) of this title when applying section 4103(d) and
(e) of this title under paragraph (1)(B) of this subsection.
§ 4112. Charging immigrants to foreign countries
An immigrant is chargeable to the foreign country in which the immi-
grant was born except in the following circumstances:
(1) When an alien child is accompanied by or following to join an
alien parent of the child, the child may be charged to the foreign coun-
try of either parent if—
(A) the parent has received or qualifies for an immigrant visa;
(B) necessary to prevent the separation of the child from the
parent; and
(C) immigration charged to the foreign country to which the
parent has been or would be chargeable has not reached the nu-
merical limitation established by section 4111(a)(1) of this title.
(2) When an alien is chargeable to a foreign country different from
that of the spouse of the alien, the alien may be charged to the foreign
country of the spouse the alien is accompanying or following to join
if—
(A) the spouse has received or qualifies for an immigrant visa;
(B) necessary to prevent the separation of the alien and spouse;
and
(C) immigration charged to the foreign country to which the
spouse has been or would be chargeable has not reached the nu-
merical limitation established by section 4111(a)(1) of this title.
(3) An alien born in the United States is deemed to have been born
in the foreign country of which the alien is a citizen or subject. If the
alien is not a citizen or subject of a foreign country, the alien is
deemed to have been born in the last foreign country in which the con-
sular officer decides that the alien resided.
(4) An alien born in a foreign country in which neither parent of
the alien was born and in which neither parent resides at the time of
the birth of the alien may be charged to the foreign country of either
parent.
(5) An alien born in a dependent area of a foreign country, except
an alien described by section 4102(d) of this title, is chargeable to that
country.
§ 4113. Burden of proof
An alien claiming to be an immigrant described by sections 4103–4106
and 4108 of this title, a special immigrant, or an immediate relative has
110
the burden of proving that the alien is such an immigrant or an immediate
relative.
CHAPTER 43—PETITIONS AND DOCUMENTATION
SUBCHAPTER I—PETITIONS
Sec.
4301.
General.
4302.
Approving petitions for children.
4303.
Petitions for married aliens.
4304.
Revoking approved petitions.
SUBCHAPTER II—DOCUMENTATION
4311.
Documentation requirements.
4312.
Applications for immigrant visas and registration.
4313.
Granting immigrant visas and other documentation.
4314.
Period of validity and revocation.
4315.
Unused immigrant visas.
4316.
Reentry permits.
4317.
Burden of proof.
4318.
Documentation waivers.
SUBCHAPTER I—PETITIONS
§ 4301. General
(a) PETITIONS TO THE ATTORNEY GENERAL.—The following individuals
may petition the Attorney General for the classification of aliens as follows:
(1) a citizen of the United States claiming classification for an alien
entitled to be classified as an immediate relative or under section
4103(b), (d), or (e) of this title.
(2) an alien lawfully admitted for permanent residence claiming clas-
sification for an alien entitled to be classified under section 4103(c) of
this title.
(3) an alien desiring to be classified under section 4104(b)(1)(A) of
this title, or a person for the alien.
(4) an individual intending to employ in the United States an alien
entitled to be classified under section 4104(b)(1)(B) or (C), (c), or (d)
of this title.
(5) except a special immigrant (as defined by section 137(a)(4) of
this title), an alien desiring to be classified under section 4104(e) of
this title, or a person for the alien.
(6) an alien desiring to be classified under section 4104(f) of this
title.
(b) PETITIONS TO THE SECRETARY OF STATE.—(1) An alien claiming
classification as a special immigrant (as defined by section 137(a)(4) of this
title) may petition the Secretary of State to be classified as that special im-
migrant. The alien may file a petition only after being notified by the Sec-
retary that the classification has been recommended and approved as pro-
vided by section 137(a)(4).
(2)(A) An alien desiring to be classified under section 4105 of this title
may petition the Secretary of State to be classified under section 4105.