118
that the applicant is entitled to be classified as a special immigrant or an
immediate relative.
(d) PROHIBITIONS.—(1) A consular officer may not grant an immigrant
visa or other documentation to an alien if—
(A) the alien is required to be registered under section 8101(a)(1)
of this title and is not registered;
(B) the alien’s application does not comply with this title or regula-
tions prescribed under this title;
(C) the alien is excludable from admission to the United States; or
(D) the consular officer has reason to believe the alien is ineligible
for the visa or other documentation.
(2) Notwithstanding paragraph (1)(D) of this subsection, a consular offi-
cer may grant an immigrant visa or other documentation to an alien to
whom section 6304(a) of this title applies if—
(A) the alien otherwise may receive the visa or other documentation;
and
(B) the consular officer receives notice from the Attorney General
that the alien filed a bond or undertaking under section 6304(b) of this
title.
(e) CONTENTS OF VISAS.—An immigrant visa consists of the application
for the visa, when visaed by the consular officer. The visa shall specify—
(1) the foreign country and the classification to which the immigrant
is charged;
(2) the expiration date of the visa; and
(3) additional required information.
(f) DISCONTINUING GRANTING VISAS WHEN COUNTRY DENIES
OR
DELAYS ACCEPTING ALIEN.—On being notified by the Attorney General
that the government of a foreign country denies or unreasonably delays ac-
cepting an alien who is a citizen, subject, national, or resident of that coun-
try after the Attorney General asks whether the government will accept the
alien under section 6537(a)(2)(B) of this title, the Secretary of State shall
order consular officers in that foreign country to discontinue granting immi-
grant visas to citizens, subjects, nationals, and residents of that country
until the Attorney General notifies the Secretary that the country has
accepted the alien.
§ 4314. Period of validity and revocation
(a) VALIDITY.—An immigrant visa is valid for the period prescribed by
regulation, but for not more than 4 months. However, an immigrant visa
granted to a child legally adopted by a citizen of the United States or a
spouse of the citizen when the citizen is serving outside the United States
in the armed forces of the United States, is employed outside the United
120
(2) the alien’s departure is not contrary to the interests of the Unit-
ed States.
(c) PERIOD OF VALIDITY.—A reentry permit may be granted for not
more than 2 years from the date it is granted and may not be renewed.
The alien may use the permit for any number of reentries into the United
States. The alien shall surrender the permit to the Attorney General when
the permit expires.
(d) PRESENTATION OF REENTRY PERMIT ON RETURNING TO THE UNIT-
ED STATES.—An alien granted a reentry permit shall present the permit
to the immigration officer at the port of entry on returning to the United
States. The immigration officer shall accept the permit as a substitute for
any visa otherwise required under this title. The permit has no effect under
the immigration laws except to establish that the alien is returning from a
temporary departure. However, this section does not require a reentry per-
mit as the only way that an alien may establish a return from a temporary
departure.
(e) FORM OF APPLICATIONS AND PERMITS.—The Attorney General shall
prescribe by regulation the form of the application and reentry permit, ex-
cept that the permit shall be in a form to identify the alien completely and
shall be printed on distinctive safety paper.
§ 4317. Burden of proof
An individual applying for an immigrant visa or other documentation re-
quired for entering the United States as an immigrant has the burden of
proving that the individual is eligible to be granted the visa or documenta-
tion. A consular officer may grant the visa or documentation only if satis-
fied that the individual is eligible to receive the visa or documentation.
§ 4318. Documentation waivers
The Attorney General may waive sections 4311(a)(1) and 6313(a)(2) and
(c) of this title for an immigrant who has an immigrant visa and otherwise
is admissible if the Attorney General is satisfied that the immigrant did not
know, and by reasonable diligence, could not have known, of the immi-
grant’s excludability—
(1) before the vessel or aircraft on which the alien came to the Unit-
ed States left the last port outside the United States and outside for-
eign contiguous territory; or
(2) for an immigrant coming from foreign contiguous territory, be-
fore the immigrant applied for admission.
CHAPTER 45—CONDITIONAL PERMANENT RESIDENT
STATUS
SUBCHAPTER I—CERTAIN ALIEN SPOUSES, SONS, AND DAUGHTERS
Sec.
4501.
Definitions.
121
4502.
Conditional basis of status.
4503.
General requirements to remove conditional basis.
4504.
Petitions.
4505.
Personal interviews.
4506.
Favorable decisions on removing the conditional basis.
4507.
Unfavorable decisions on removing the conditional basis.
4508.
Treatment of conditional basis period for naturalization purposes.
4509.
Ending waivers.
SUBCHAPTER II—CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHILDREN
4521.
Definitions.
4522.
Conditional basis of status.
4523.
General requirements to remove conditional basis.
4524.
Petitions.
4525.
Personal interviews.
4526.
Favorable decisions on removing the conditional basis.
4527.
Unfavorable decisions on removing the conditional basis.
4528.
Treatment of conditional basis period for naturalization purposes.
SUBCHAPTER I—CERTAIN ALIEN SPOUSES, SONS, AND
DAUGHTERS
§ 4501. Definitions
In this subchapter—
(1) ‘‘alien son or daughter’’ means an alien who acquires the status
of an alien lawfully admitted for permanent residence because the alien
is the son or daughter of an individual through a qualifying marriage.
(2) ‘‘alien spouse’’—
(A) means an alien who, because of a qualifying marriage, ac-
quires the status of an alien lawfully admitted for permanent resi-
dence—
(i) as an immediate relative as the spouse of a citizen of
the United States;
(ii) under section 2309(b) of this title as the fiancee or fi-
ance of a citizen of the United States; or
(iii) under section 4103(c) of this title as the spouse of an
alien lawfully admitted for permanent residence; but
(B) does not include an alien who acquires the status of an
alien lawfully admitted for permanent residence because of section
4108 of this title.
(3) ‘‘petitioning spouse’’ means the spouse of a qualifying marriage,
except the alien.
(4) ‘‘qualifying marriage’’ means a marriage entered into less than
24 months before the date an alien spouse acquires the status of an
alien lawfully admitted for permanent residence because of the mar-
riage.
§ 4502. Conditional basis of status
(a) GENERAL.—An alien spouse or an alien son or daughter, when ac-
quiring the status of an alien lawfully admitted for permanent residence, ac-
quires that status on a conditional basis as provided by this subchapter.
122
(b) NOTICE REQUIREMENTS.—When an alien spouse or alien son or
daughter acquires the status of an alien lawfully admitted for permanent
residence on a conditional basis under subsection (a) of this section, the At-
torney General shall notify the spouse, son, or daughter about this sub-
chapter and the requirements of section 4503 of this title to have the condi-
tional basis of the status removed. However, the failure of the Attorney
General to provide notice does not affect the enforcement of this subchapter
against the spouse, son, or daughter.
§ 4503. General requirements to remove conditional basis
To remove the conditional basis established under section 4502(a) of this
title, the alien spouse and the petitioning spouse (if living)—
(1) jointly must submit to the Attorney General a petition requesting
the removal of the conditional basis and containing, under penalty of
perjury, the information required by section 4504(b) of this title; and
(2) must appear before the Attorney General for a personal interview
about the information required by section 4504(b).
§ 4504. Petitions
(a) TIME FOR SUBMISSION.—(1) Except as provided by paragraph (2) of
this subsection, the petition required by section 4503(1) of this title must
be submitted during the 90-day period immediately before the 2d anniver-
sary that the alien acquired the status of an alien lawfully admitted for per-
manent residence.
(2) A petition submitted after the 90-day period may be considered only
if the alien satisfies the Attorney General that good cause and extenuating
circumstances existed for not submitting the petition during that period.
(3) The Attorney General may stay a deportation proceeding against an
alien who did not submit a petition within the 90-day period required under
paragraph (1) of this subsection pending the submission of the petition
under paragraph (2) of this subsection.
(4) At or about the beginning of the 90-day period, the Attorney General
shall try to notify the alien spouse or alien son or daughter of the require-
ments of section 4503 of this title. However, the failure of the Attorney
General to provide notice does not affect the enforcement of this subchapter
against the spouse, son, or daughter.
(b) CONTENTS.—Each petition shall contain the following information:
(1) that the qualifying marriage—
(A) complied with the laws of the place where the marriage took
place;
(B) has not been annulled judicially or ended, except through
the death of a spouse; and
123
(C) was not entered into to procure the entry of an alien as an
immigrant.
(2) that no consideration was given, except to an attorney for assist-
ance in preparing the petition, for filing under section 2309(b) or 4301
(a) or (b) of this title a petition for an alien spouse or an alien son
or daughter.
(3) the actual residence of each party to the qualifying marriage
since the date the alien spouse acquired the status of an alien lawfully
admitted for permanent residence on a conditional basis under section
4502(a) of this title.
(4) each employer and place of employment of each party since that
date.
§ 4505. Personal interviews
(a) TIME AND LOCATION REQUIREMENTS.—(1) The personal interview
required by section 4503(2) of this title shall be conducted—
(A) within 90 days after the date a petition is submitted as required
by section 4503(1) of this title; and
(B) at a local office of the Immigration and Naturalization Service
the Attorney General designates that is convenient to the parties in-
volved.
(2) The Attorney General may waive the interview or the deadline for the
interview when appropriate.
(b) DECISIONS ON TRUTHFULNESS OF STATEMENTS.—Within 90 days
after an interview is conducted as required by section 4503(2) of this title,
the Attorney General shall decide whether the information in the petition
and required by section 4504(b) of this title about the qualifying marriage
is true.
§ 4506. Favorable decisions on removing the conditional
basis
(a) FAVORABLE DECISIONS.—If the Attorney General decides the infor-
mation required by section 4504(b) of this title is true, the Attorney Gen-
eral shall notify the parties involved and shall remove the conditional basis
of the status of the parties effective on the 2d anniversary that the alien
acquired the status of an alien lawfully admitted for permanent residence.
(b) HARDSHIP WAIVERS.—(1) The Attorney General may remove the
conditional basis of an alien spouse or alien son or daughter when the alien
spouse does not comply with section 4503 of this title if the alien spouse
or alien son or daughter shows that—
(A) extreme hardship would result if the alien spouse or alien son
or daughter is deported;
124
(B) the qualifying marriage was entered into in good faith by the
alien spouse, but the marriage has been ended (except through the
death of the spouse), and the alien spouse was not at fault in not com-
plying with section 4503 of this title; or
(C) the qualifying marriage was entered into in good faith by the
alien spouse and during the marriage the alien spouse or alien son or
daughter was battered by, or was the subject of extreme cruelty com-
mitted by, the spouse of the alien spouse or the citizen or permanent
resident parent of the alien son or daughter, and the alien spouse was
not at fault in not complying with section 4503 of this title.
(2) When deciding whether extreme hardship would result, the Attorney
General shall consider circumstances occurring only during the period the
alien was lawfully admitted for permanent residence on a conditional basis.
(3) The Attorney General shall establish by regulation ways to protect the
confidentiality of information about an abused alien spouse or alien son or
daughter, including information on the location of the spouse, son, or
daughter.
§ 4507. Unfavorable decisions on removing the conditional
basis
(a) IMPROPER QUALIFYING MARRIAGES.—The Attorney General shall
end, as of the date the Attorney General makes a decision under this sub-
section, the status of an alien spouse or alien son or daughter as an alien
lawfully admitted for permanent residence and shall so notify the parties in-
volved if, before the 2d anniversary of the date the alien acquired the status,
the Attorney General decides that—
(1) the qualifying marriage—
(A) was entered into to procure an alien’s entry as an immi-
grant; or
(B) has been annulled judicially or ended, except through the
death of a spouse; or
(2) consideration was given, except to an attorney for assistance in
preparing the petition, for filing a petition for the alien under section
2309(b) or 4301(a) or (b) of this title.
(b) UNTRUE PETITION INFORMATION.—If the Attorney General decides
any information required by section 4504(b) of this title is not true, the At-
torney General shall end, as of the date of the decision, the status of an
alien spouse or alien son or daughter as an alien lawfully admitted for per-
manent residence and notify the parties involved.
(c) FAILURE TO FILE PETITIONS OR HAVE PERSONAL INTERVIEWS.—
The Attorney General shall end, as of the 2d anniversary of the alien’s law-
125
ful admission for permanent residence, the status of an alien spouse or alien
son or daughter as an alien lawfully admitted for permanent residence if—
(1) a petition is not submitted as required by section 4503(1) of this
title; or
(2) unless good cause is shown, the alien spouse and petitioning
spouse do not appear at the interview required by section 4503(2) of
this title.
(d) REVIEW OF DECISIONS.—(1) An alien whose permanent resident sta-
tus is ended under subsection (a) or (b) of this section may request a review
of the decision in a proceeding to deport the alien. The burden of proof is
on the Attorney General to establish by a preponderance of the evidence
that—
(A) if ended under subsection (a) of this section, a ground described
by subsection (a) is met; or
(B) if ended under subsection (b) of this section, any information re-
quired by section 4504(b) of this title about the qualifying marriage
is not true.
(2) An alien whose permanent resident status is ended under subsection
(c) of this section has the burden of proof in a deportation proceeding of
establishing compliance with section 4503 of this title.
§ 4508. Treatment of conditional basis period for naturaliza-
tion purposes
In carrying out subtitle V of this title, an alien who is in the United
States as an alien lawfully admitted for permanent residence on a condi-
tional basis under this subchapter is deemed to have been admitted and to
be in the United States as an alien lawfully admitted for permanent resi-
dence.
§ 4509. Ending waivers
A waiver under section 6301(b) or 6307(b) of this title obtained by an
alien to acquire the status of an alien lawfully admitted for permanent resi-
dence on a conditional basis under this subchapter ends when the status
ends under this subchapter.
SUBCHAPTER II—CERTAIN ALIEN ENTREPRENEURS, SPOUSES,
AND CHILDREN
§ 4521. Definitions
In this subchapter—
(1) ‘‘alien child’’ means an alien who acquires the status of an alien
lawfully admitted for permanent residence because the alien is the child
of an alien entrepreneur.
126
(2) ‘‘alien entrepreneur’’ means an alien who acquires the status of
an alien lawfully admitted for permanent residence under section
4104(f) of this title.
(3) ‘‘alien spouse’’ means an alien who acquires the status of an
alien lawfully admitted for permanent residence because the alien is the
spouse of an alien entrepreneur.
§ 4522. Conditional basis of status
(a) GENERAL.—An alien entrepreneur, alien spouse, or alien child, when
acquiring the status of an alien lawfully admitted for permanent residence,
acquires that status on a conditional basis as provided by this subchapter.
(b) NOTICE REQUIREMENTS.—When an alien entrepreneur, alien spouse,
or alien child acquires the status of an alien lawfully admitted for perma-
nent residence on a conditional basis under subsection (a) of this section,
the Attorney General shall notify the entrepreneur, spouse, or child about
this subchapter and the requirements of section 4523 of this title to have
the conditional basis of the status removed. However, the failure of the At-
torney General to provide notice does not affect the enforcement of this sub-
chapter against the entrepreneur, spouse, or child.
§ 4523. General requirements to remove conditional basis
To remove the conditional basis established under section 4522(a) of this
title, the alien entrepreneur must—
(1) submit to the Attorney General a petition requesting the removal
of the conditional basis and containing, under penalty of perjury, the
information described by section 4524(b) of this section; and
(2) appear before the Attorney General for a personal interview
about the information required by section 4524(b).
§ 4524. Petitions
(a) TIME FOR SUBMISSION.—(1) Except as provided by paragraph (2) of
this subsection, the petition required by section 4523(1) of this title must
be submitted during the 90-day period immediately before the 2d anniver-
sary that the alien acquired the status of an alien lawfully admitted for per-
manent residence.
(2) A petition submitted after the 90-day period may be considered only
if the alien satisfies the Attorney General that good cause and extenuating
circumstances exist for not submitting the petition during that period.
(3) The Attorney General may stay a deportation proceeding against an
alien who did not submit a petition within the 90-day period required under
paragraph (1) of this subsection pending the submission of the petition
under paragraph (2) of this subsection.
(4) At or about the beginning of the 90-day period, the Attorney General
shall try to notify the alien entrepreneur, alien spouse, or alien child of the
127
requirements of section 4523 of this title. However, the failure of the Attor-
ney General to provide notice does not affect the enforcement of this chap-
ter against the entrepreneur, spouse, or child.
(b) CONTENTS.—Each petition shall contain information demonstrating
that the alien—
(1) established a commercial enterprise;
(2) invested or was actively in the process of investing the required
capital; and
(3) conducted the actions described by clauses (1) and (2) of this
subsection during the entire period of the alien’s residence in the
United States.
§ 4525. Personal interviews
(a) TIME AND LOCATION REQUIREMENTS.—(1) The personal interview
required by section 4523(2) of this title shall be conducted—
(A) within 90 days after the date a petition is submitted as required
by section 4523(1) of this title; and
(B) at a local office of the Immigration and Naturalization Service
the Attorney General designates that is convenient to the parties in-
volved.
(2) The Attorney General may waive the interview or the deadline for the
interview when appropriate.
(b) DECISIONS ON TRUTHFULNESS OF STATEMENTS.—Within 90 days
after an interview is conducted under section 4523(2) of this title, the At-
torney General shall decide whether the information in the petition and re-
quired by section 4524(b) of this title about the qualifying commercial en-
terprise is true.
§ 4526. Favorable decisions on removing the conditional
basis
If the Attorney General decides the information required by section
4524(b) of this title is true, the Attorney General shall notify the alien in-
volved and shall remove the conditional basis of the status of the alien effec-
tive on the 2d anniversary that the alien acquired the status of an alien
lawfully admitted for permanent residence.
§ 4527. Unfavorable decisions on removing the conditional
basis
(a) IMPROPER QUALIFYING ENTREPRENEURSHIPS.—The Attorney Gen-
eral shall end, as of the date the Attorney General makes a decision under
this subsection, the status of an alien entrepreneur, alien spouse, and alien
child as aliens lawfully admitted for permanent residence and shall so notify
the alien entrepreneur if, before the 2d anniversary of the date the alien
128
entrepreneur acquired the status, the Attorney General decides the alien en-
trepreneur—
(1) established the commercial enterprise only to evade the immigra-
tion laws of the United States;
(2)(A) did not establish a commercial enterprise;
(B) did not invest or was not actively in the process of investing the
required capital; or
(C) was not conducting the actions described by subclauses (A) and
(B) of this clause during the entire period of the alien’s residence in
the United States; or
(3) otherwise was not complying with the requirements of section
4104(f) of this title.
(b) UNTRUE PETITION INFORMATION.—If the Attorney General decides
any information required by section 4524(b) of this title is not true, the At-
torney General shall end, as of the date of the decision, the status of an
alien entrepreneur, alien spouse, or alien child as an alien lawfully admitted
for permanent residence and notify the alien involved.
(c) FAILURE TO FILE PETITIONS OR HAVE PERSONAL INTERVIEWS.—
The Attorney General shall end, as of the 2d anniversary of the alien’s law-
ful admission for permanent residence, the status of an alien entrepreneur
as an alien lawfully admitted for permanent residence (and the status of the
entrepreneur’s spouse or child if acquired under section 4502(a) or 4522(a)
of this title) if—
(1) a petition is not submitted as required by section 4523(1) of this
title; or
(2) unless good cause is shown, the alien entrepreneur does not ap-
pear at the interview required by section 4523(2) of this title.
(d) REVIEW OF DECISIONS.—(1) An alien whose permanent residence
status is ended under subsection (a) or (b) of this section may request a
review of the decision in a proceeding to deport the alien. The burden of
proof is on the Attorney General to establish by a preponderance of the evi-
dence that—
(A) if ended under subsection (a) of this section, a ground described
by subsection (a) is met; or
(B) if ended under subsection (b) of this section, the information re-
quired by section 4524(b) of this title about the qualifying commercial
enterprise is not true.
(2) An alien whose permanent residence status is ended under subsection
(c) of this section has the burden of proof in a deportation proceeding of
establishing compliance with section 4523 of this title.
129
§ 4528. Treatment of conditional basis period for naturaliza-
tion purposes
In carrying out subtitle V of this title, an alien who is in the United
States as an alien lawfully admitted for permanent residence on a condi-
tional basis under this subchapter is deemed to have been admitted and to
be in the United States as an alien lawfully admitted for permanent resi-
dence.
PART C—REFUGEES
CHAPTER 51—ADMISSIONS
Sec.
5101.
Definition.
5102.
Annual worldwide numerical limitations.
5103.
Additional emergency numerical limitations.
5104.
Congressional consultation and hearings.
5105.
Admissions.
5106.
Asylum.
5107.
Change of status.
§ 5101. Definition
(a) APPROPRIATE CONSULTATION.—In this chapter, ‘‘appropriate con-
sultation’’ means discussions in person between Cabinet-level representatives
of the President and members of the Committees on the Judiciary of the
Senate and House of Representatives on refugee admissions and the alloca-
tion of refugee admissions that—
(1) review the worldwide refugee situation or an unforeseen emer-
gency refugee situation and estimate possible United States participa-
tion in the situation;
(2) consider the reasons for believing that the proposed admissions
are justified by humanitarian concerns or grave humanitarian concerns
or otherwise are in the interest of the United States; and
(3) provide the members with—
(A) a description of the nature of the refugee situation;
(B) a description of the number and allocation of the refugees
to be admitted and an analysis of conditions in the foreign coun-
tries from which they came;
(C) a description of the proposed plans and estimated cost of
moving and resettling the refugees;
(D) an analysis of the anticipated social, economic, and demo-
graphic impact of the refugee admissions on the United States;
(E) a description of the extent to which other foreign countries
will admit and assist in resettling the refugees;
(F) an analysis of the impact of United States participation in
the resettlement of the refugees on the foreign policy interests of
the United States; and
130
(G) additional information that may be appropriate or requested
by the members.
(b) PROVIDING INFORMATION IN ADVANCE.—To the extent possible, in-
formation described by subsection (a)(3) of this section shall be provided at
least 2 weeks before the discussions in person between the representatives
of the President and the members.
§ 5102. Annual worldwide numerical limitations
Before the beginning of each fiscal year and after appropriate consulta-
tion, the President shall establish for the fiscal year the number of refugee
admissions to the United States justified by humanitarian concerns or oth-
erwise in the interest of the United States and state, of the number estab-
lished for the prior fiscal year, the number of aliens granted asylum. After
appropriate consultation, the President shall allocate admissions among ref-
ugees of special humanitarian concern to the United States.
§ 5103. Additional emergency numerical limitations
(a) ESTABLISHMENT
OF NUMBER.—As provided by this section, the
President may establish an additional number of refugee admissions to the
United States for a succeeding period of not more than 12 months. The
President may establish the additional number when the President decides,
before the beginning of the period and after appropriate consultation,
that—
(1) an unforeseen emergency refugee situation exists;
(2) the admission of certain refugees in response to the situation is
justified by grave humanitarian concerns or otherwise is in the interest
of the United States; and
(3) the admission of the refugees cannot be carried out under section
5102 of this title.
(b) ALLOCATION.—After appropriate consultation, the President shall al-
locate the admissions under subsection (a) of this section among refugees
of special humanitarian concern to the United States.
§ 5104. Congressional consultation and hearings
(a) PRESIDENTIAL REPORTS AND DISCUSSIONS.—Before the beginning of
each fiscal year, the President shall report to the Committees on the Judici-
ary of the Senate and House of Representatives on the foreseeable number
of refugees who will need resettlement during the fiscal year and the antici-
pated allocation of refugee admissions during that year. The President shall
provide for periodic discussions between representatives of the President and
members of the Committees on—
(1) changes in the worldwide refugee situation;
(2) the progress of refugee admissions; and
131
(3) the possible need for changes in the allocation of admissions
among refugees.
(b) PRINTING IN CONGRESSIONAL RECORD.—As soon as possible after
representatives of the President initiate appropriate consultation on the
number of refugee admissions under section 5102 or 5103 of this title, the
Committees shall have the substance of the consultations printed in the
Congressional Record.
(c) COMMITTEE HEARINGS.—After the President begins appropriate con-
sultation before acting under section 5102 or 5103 of this title, each Com-
mittee shall hold a hearing to review the proposed action unless—
(1) public disclosure of the details of the action would jeopardize the
lives or safety of individuals; and
(2) if an action under section 5103, the time and nature of the emer-
gency refugee situation do not permit hearings.
§ 5105. Admissions
(a) AUTHORITY OF THE ATTORNEY GENERAL.—The Attorney General
may admit a refugee under regulations the Attorney General prescribes and
subject to the numerical limitations of sections 5102 and 5103 of this title.
The Attorney General may admit the refugee when the refugee—
(1) is not resettled firmly in a foreign country;
(2) is admissible (except as otherwise provided under subsections (d)
and (e) of this section) as an immigrant under this title; and
(3) is of special humanitarian concern to the United States.
(b) BURDEN OF PROOF.—An alien claiming refugee status has the bur-
den of proving that the alien is entitled to that status.
(c) ADMISSION OF SPOUSES AND CHILDREN.—(1) The spouse or child
(as defined by section 110(a)(1)–(5) of this title) of a refugee qualifying for
admission under subsection (a) of this section is entitled to be admitted the
same as the refugee if the spouse or child is—
(A) accompanying or following to join the refugee;
(B) not an individual referred to in section 135(2) of this title; and
(C) not admissible (except as otherwise provided under subsections
(d) and (e) of this section) under subsection (a) of this section.
(2) The admission of the spouse or child shall be charged against the nu-
merical limitation under which the refugee’s admission is charged.
(d) NONAPPLICATION.—Sections 4104(c)(2), (d)(3), and (g)(1) and (2),
4311(a), 6304(a), and 6313 of this title do not apply to an alien applying
for admission under this section.
(e) WAIVERS.—(1) The Attorney General may waive section 2121(a) and
subchapter I of chapter 63 of this title (except sections 6307(a)(3),
6308(a)–(c), and 6309) for the alien—
132
(A) for humanitarian purposes;
(B) to ensure family unity; or
(C) when otherwise in the public interest.
(2) A waiver under paragraph (1) of this subsection shall be in writing
and granted only after an investigation of the alien. The Attorney General
shall report to Congress after the end of each fiscal year on the number
of waivers granted in that fiscal year and a summary of the reasons for
granting the waivers.
(f) CERTAIN CUBAN POLITICAL PRISONERS.—(1) In this subsection,
‘‘process’’ means accepting and reviewing an application and preparing nec-
essary documents and making appropriate decisions related to the applica-
tion.
(2) Consistent with the procedure applicable to similar cases in other for-
eign countries, and except as necessary to ensure the orderly process of
available applicants, consular officers and the Attorney General shall proc-
ess an application from a Cuban national imprisoned for any period of time
after December 31, 1958, as an application for admission to the United
States as a refugee.
(g) ENDING REFUGEE STATUS.—Under regulations the Attorney General
prescribes, the Attorney General may end the refugee status of an alien and
the spouse and child of the alien on finding that the alien was not a refugee
at the time of the alien’s admission.
§ 5106. Asylum
(a) APPLICATIONS FOR, AND GRANTING, ASYLUM.—The Attorney Gen-
eral shall prescribe a procedure for an alien physically present in the United
States or at a land border or port of entry, regardless of the alien’s status,
to apply for asylum. If the Attorney General decides that the alien is a refu-
gee (as defined by section 135(1)(A) of this title), the Attorney General may
grant asylum to the alien. However, an alien convicted of an aggravated fel-
ony may not apply for, or be granted, asylum.
(b) ENDING ASYLUM.—Under regulations the Attorney General pre-
scribes, the Attorney General may end asylum granted under subsection (a)
of this section if the Attorney General decides that the alien is no longer
a refugee (as defined by section 135(1)(A) of this title) because of a change
in circumstances—
(1) in the alien’s country of nationality; or
(2) if the alien has no nationality, in the country in which the alien
last habitually resided.
(c) GRANTING ASYLUM TO SPOUSES AND CHILDREN.—The spouse or
child (as defined by section 110(a)(1)–(5) of this title) of an alien granted
133
asylum under subsection (a) of this section may be granted asylum under
subsection (a) if the spouse or child—
(1) is accompanying or following to join the alien; and
(2) may not be granted asylum otherwise under subsection (a) of this
section.
§ 5107. Change of status
(a) INSPECTION AND EXAMINATION OF REFUGEES FOR ADMISSION AS
IMMIGRANTS.—(1) An alien admitted as a refugee under section 5105 of
this title and physically present in the United States for at least one year
shall return or be returned to the custody of the Attorney General at the
end of the year for inspection and examination for admission as an immi-
grant under sections 6103, 6331(a)–(d) and (f)–(h), and 6332 of this title
if—
(A) the refugee’s status as a refugee has not been ended by the At-
torney General; and
(B) the refugee has not been lawfully admitted for permanent resi-
dence.
(2) A refugee found to be admissible (except as otherwise provided under
subsections (d)(2) and (e) of this section) as an immigrant under this title
at the time of the refugee’s inspection and examination under paragraph (1)
of this subsection shall be lawfully admitted for permanent residence as of
the date of the refugee’s arrival in the United States. Admission is without
regard to the numerical limitations of this title.
(b) ALIENS GRANTED ASYLUM.—(1) Under regulations the Attorney
General prescribes, not more than 10,000 of the refugee admissions author-
ized in a fiscal year under section 5102 of this title may be allocated to
the Attorney General to change the status of aliens granted asylum under
section 5106 of this title to that of aliens lawfully admitted for permanent
residence. The status of an alien may be changed when the alien—
(A) applies for the change;
(B) has been physically present in the United States for at least one
year after being granted asylum;
(C) continues to be a refugee as required by section 5106 of this title
or a spouse or child of the refugee;
(D) is not resettled firmly in a foreign country; and
(E) is admissible (except as otherwise provided under subsections
(d)(2) and (e) of this section) as an immigrant under this title at the
time of examination for the change.
(2) On approval of an application under paragraph (1) of this subsection,
the Attorney General shall record the lawful admission for permanent resi-
dence of the alien as of the date one year before the date of approval.
134
(c) CERTAIN FORMER ASYLEES.—(1) Except as provided by paragraph
(2) of this subsection and subsection (d)(1) of this section, subsection (b)
of this section applies to an alien granted asylum before November 29, 1990
(even if asylum had been ended under section 5106(b) of this title) who—
(A) is no longer a refugee because of a change in circumstances in
a foreign country; and
(B) was or would be qualified for a change of status under sub-
section (b) on November 29, 1990, except for subsection (b)(1)(B) and
(C) and the numerical limitation under subsection (b).
(2) The number of aliens who are natives of a foreign country who may
change their status under paragraph (1) of this subsection in a fiscal year
may not be more than the difference between the foreign country limitation
established under 4111(a) of this title and the number of aliens chargeable
to the country in the fiscal year under section 4112 of this title.
(d) NONAPPLICATION.—(1) The numerical limitation of subsection (b) of
this section does not apply to an alien described by subsection (c) of this
section or to an alien who applied for a change of status under subsection
(b) before June 2, 1990.
(2) Sections 4311(a), 6304(a), 6313, and 9106 of this title do not apply
to an alien whose status is being changed under this section.
(e) WAIVER.—The Attorney General may waive section 2121(a) and sub-
chapter I of chapter 63 of this title (except sections 6307(a)(3), 6308(a)–
(c), and 6309) for an alien—
(1) for humanitarian purposes;
(2) to ensure family unity; or
(3) when otherwise in the public interest.
PART D—ENTRY, EXCLUSION, AND DEPORTATION
CHAPTER 61—ARRIVAL, INSPECTION, AND ADMISSION
SUBCHAPTER I—GENERAL
Sec.
6101.
Time and place of entry.
6102.
Presentation of documentation.
6103.
Inspection of arriving individuals.
6104.
Physical and mental examinations of arriving aliens.
6105.
Custody pending decisions on excluding aliens convicted of aggravated felonies.
6106.
Presidential authority to suspend entry of aliens.
6107.
Denial of admission of United Nations representatives because of espionage.
SUBCHAPTER II—ADMISSION OF CERTAIN ALIENS
6121.
Lawfully admitted aliens returning after temporary absence.
6122.
Temporary admission of excludable nonimmigrants.
6123.
Temporary parole.
6124.
Accredited officials of foreign governments.
SUBCHAPTER I—GENERAL
§ 6101. Time and place of entry
An alien may enter the United States only at the time and place des-
ignated by an immigration officer.
135
§ 6102. Presentation of documentation
(a) IMMIGRANT ARRIVALS.—An alien arriving in the United States as an
immigrant shall surrender the alien’s immigrant visa to the immigration of-
ficer at the port of entry. The immigration officer shall endorse on the
visa—
(1) the date and the port of arrival;
(2) the identity of the vessel, aircraft, or other means of transpor-
tation; and
(3) other information required by regulation.
(b) NONIMMIGRANT ARRIVALS.—(1) Except as provided by paragraph (2)
of this subsection, an alien arriving in the United States as a nonimmigrant
shall present or surrender to the immigration officer at the port of entry
documentation required by regulation.
(2) An alien arriving in the United States as a nonimmigrant crew-
member with a passport and no other documentation may be admitted until
it is practicable to grant documentation to the alien if—
(A) the name of the crewmember is on the crew list of the vessel
or aircraft on which the crewmember arrives;
(B) a consular officer visas the crew list (but the consular officer
may exclude a crewmember from the crew list visa); and
(C) the alien is otherwise admissible.
(c) RECORDS OF ADMISSION.—The Attorney General shall file—
(1) as a record of an alien’s admission, an immigrant visa surren-
dered by the alien under subsection (a) of this section; and
(2) a record of entry into the United States that the Attorney Gen-
eral considers necessary to enforce the immigration laws, on the admis-
sion of—
(A) a returning resident immigrant under section 4311(b) of
this title; and
(B) a nonimmigrant.
§ 6103. Inspection of arriving individuals
(a) GENERAL AUTHORITY.—An immigration officer may inspect an indi-
vidual arriving in the United States to decide whether the individual is ad-
missible.
(b) STATEMENTS UNDER OATH.—An individual arriving in the United
States may be required to state under oath—
(1) the individual’s purpose in coming to the United States;
(2) the period the individual intends to remain in the United States;
(3) whether, if an alien, the individual intends to become a citizen
of the United States; and
136
(4) additional information to assist the immigration officer in decid-
ing whether the individual is a national of the United States or an
alien, and if an alien, whether the individual is excludable.
(c) DETENTION AND INSPECTION OF ALIENS.—(1) To decide whether an
alien arriving in the United States is admissible, an immigration officer
shall detain the alien for a sufficient time—
(A) to inspect the alien; and
(B) to have the alien undergo a physical and mental examination
under section 6104 of this title.
(2) Except as provided by paragraph (3) of this subsection, the alien shall
be detained for further inquiry before a special inquiry officer under section
6331 of this title if—
(A) the immigration officer has any doubt about the alien’s admissi-
bility; or
(B) another immigration officer challenges the first immigration offi-
cer’s decision to admit the alien.
(3) Paragraph (2) of this subsection does not apply to an alien who is—
(A) a crewmember;
(B) a stowaway; or
(C) excluded from admission under subsection (d) of this section.
(d) ALIENS DANGEROUS TO NATIONAL SECURITY.—(1) If an immigra-
tion officer or a special inquiry officer suspects that an alien may be exclud-
able under section 6308(a)(1) or (3), (b), or (c) of this title, the officer shall
exclude the alien temporarily from admission and report the exclusion to the
Attorney General. No further inquiry may be conducted until ordered by the
Attorney General. The alien or the alien’s representative may submit a writ-
ten statement and additional information for consideration by the Attorney
General.
(2) The Attorney General may order the alien excluded and deported
without further inquiry by a special inquiry officer if the Attorney Gen-
eral—
(A) is satisfied on the basis of confidential information that the alien
is excludable under section 6308(a)(1) or (3), (b), or (c) of this title;
and
(B) after consulting with appropriate security agencies of the United
States Government, concludes that disclosure of the information would
be prejudicial to the public interest, safety, or security.
§ 6104. Physical and mental examinations of arriving aliens
(a) EXAMINATIONS BY MEDICAL OFFICERS.—Except as provided by sub-
section (c) of this section, a medical officer of the Public Health Service
shall—
137
(1) conduct a physical and mental examination of an alien arriving
in the United States; and
(2) certify any observation by the officer that—
(A) the alien has a condition described by section 6302(a) of
this title; or
(B) an alien ordered excluded and deported is helpless because
of sickness, disability, or infancy.
(b) OFFICERS TRAINED IN MENTAL EXAMINATIONS.—Medical officers of
the Service, specially trained in diagnosing mental defects, shall be assigned
to ports of entry designated by the Attorney General. The Attorney General
shall provide those medical officers with interpreters and suitable facilities
for detaining and examining arriving aliens suspected of being excludable
under section 6302(a) of this title.
(c) USE OF PRIVATE AND MILITARY PHYSICIANS.—If a medical officer
of the Service is not available to conduct an examination under subsection
(a) of this section, the Attorney General may obtain, on terms the Attorney
General prescribes, the services of—
(1) a private physician with at least 4 years of professional experi-
ence; or
(2) if the alien to be examined is a special immigrant as defined by
section 137(a)(13) of this title, a physician of the armed forces of the
United States with at least 4 years of professional experience.
(d) EXAMINATIONS CONDUCTED UNDER REGULATIONS.—Examinations
under this section shall be conducted under administrative regulations pre-
scribed by the Attorney General and medical regulations prescribed by the
Secretary of Health and Human Services.
(e) APPEAL OF CERTIFICATION.—An alien certified under this section as
having a condition described by section 6302(a) of this title may appeal the
certification to a board of medical officers of the Service convened by the
Secretary. The alien may present before the board, at the alien’s expense,
one expert medical witness.
§ 6105. Custody pending decisions on excluding aliens con-
victed of aggravated felonies
(a) CUSTODY.—Pending a decision on excludability, the Attorney General
shall take into custody an alien convicted of an aggravated felony when the
alien is released (whether the alien is released on parole, supervised release,
or probation or may be arrested or imprisoned again for the same offense).
(b) RELEASE FROM CUSTODY.—The Attorney General may release an
alien taken into custody under subsection (a) of this section only if—
138
(1) the Attorney General decides that the alien may not be deported
because the condition described by section 4313(f) of this title exists;
and
(2)(A) a procedure has been established for reviewing each request
for release under this subsection;
(B) the procedure includes consideration of the severity of the felony
committed; and
(C) the review concludes that the alien will not pose a danger to the
safety of other individuals or to property.
§ 6106. Presidential authority to suspend entry of aliens
When the President finds that the entry of aliens or a class of aliens into
the United States would be detrimental to the interests of the United
States, the President, by proclamation, may suspend the entry of all aliens
or a class of aliens or impose restrictions on their entry, for any period the
President considers necessary.
§ 6107. Denial of admission of United Nations representa-
tives because of espionage
The President shall use the authority of the President, including the au-
thority contained in section 6 of the Joint Resolution of August 4, 1947
(ch. 482, 61 Stat. 767) (known as the United Nations Headquarters Agree-
ment Act), to deny admission of an individual to the United States as a
representative to the United Nations if the President decides that the indi-
vidual has been found to have been engaged in espionage activities directed
against the United States or its allies and may pose a threat to the security
interests of the United States. The President may waive this section if the
President decides, and notifies Congress, that the waiver is in the security
interests of the United States.
SUBCHAPTER II—ADMISSION OF CERTAIN ALIENS
§ 6121. Lawfully admitted aliens returning after temporary
absence
(a) GENERAL.—The Attorney General may admit an alien who is lawfully
admitted for permanent residence and returning after a temporary absence,
without regard to section 4311(a) or subchapter I of chapter 63 of this title
(except sections 6308, 6309, and 6312), if the alien—
(1) left the United States voluntarily and not under an order of de-
portation; and
(2) is returning to a lawful unrelinquished domicile of 7 consecutive
years.
(b) OTHER AUTHORITY NOT LIMITED.—Subsection (a) of this section
does not limit the authority of the Attorney General under section 4311(b)
of this title.
139
(c) NONAPPLICATION TO CERTAIN FELONS.—Subsection (a) of this sec-
tion does not apply to an alien who has been convicted of, and has served
a total term of imprisonment of at least 5 years for, one or more aggravated
felonies.
§ 6122. Temporary admission of excludable nonimmigrants
(a) GRANTING NONIMMIGRANT VISAS.—An alien applying for a non-
immigrant visa who a consular officer believes is ineligible for the visa under
section 2121(a) of this title or excludable under subchapter I of chapter 63
of this title (except sections 6308(a)(1)(A), (2), and (3), and (c), and 6309)
may be granted a nonimmigrant visa and admitted temporarily as a non-
immigrant if the Attorney General approves a recommendation by the offi-
cer or the Secretary of State that the alien be admitted temporarily despite
the alien’s inadmissibility.
(b) ADMISSIONS.—An alien inadmissible under section 2121(a) of this
title or excludable under subchapter I of chapter 63 of this title (except sec-
tions 6308(a)(1)(A), (2), and (3), and (c), and 6309) may be admitted tem-
porarily as a nonimmigrant if the alien—
(1) has the appropriate documentation; or
(2) is granted a waiver of the documentation requirements.
(c) CONDITIONS TO CONTROL ADMISSION AND RETURN.—The Attorney
General shall prescribe conditions, including filing a bond as necessary, to
control the admission and return of aliens applying for admission under this
section.
§ 6123. Temporary parole
(a) GENERAL.—Except as provided by section 2305(c) of this title, the
Attorney General, for an emergency or other reasons strictly in the public
interest, may parole temporarily into the United States an alien applying
for admission. However, if the alien is a refugee, the Attorney General may
parole the alien only if the Attorney General finds compelling reasons in the
public interest requiring the alien to be paroled instead of admitted as a
refugee. Parole of an alien under this section—
(1) is subject to conditions the Attorney General may prescribe; and
(2) is not an admission to the United States.
(b) END OF PAROLE.—When the Attorney General is of the opinion that
the purposes of the parole have been served, the alien immediately shall re-
turn or be returned to the custody from which the alien was paroled. There-
after, the alien’s application for admission shall continue to be considered
in the same way as the application of any other alien for admission.
§ 6124. Accredited officials of foreign governments
On a reciprocal basis, an accredited official of a government of a foreign
country, and the official’s immediate family, attendants, servants, and per-
140
sonal employees, may be admitted for immediate and continuous travel
through the United States without regard to subchapter I of chapter 63 of
this title (except section 6308(a)–(c)).
CHAPTER 63—EXCLUSION
SUBCHAPTER I—GROUNDS FOR EXCLUSION
Sec.
6301.
Fraud and misrepresentation.
6302.
Health.
6303.
Protection and guardianship of aliens excluded for health or infancy.
6304.
Public charges.
6305.
Stowing away.
6306.
Encouraging others to enter illegally.
6307.
Criminal and immoral acts.
6308.
National security.
6309.
Participation in Nazi persecution or genocide.
6310.
Prior deportation or removal.
6311.
Ineligibility for citizenship and evasion of military service.
6312.
International child abduction.
6313.
Noncompliance with documentation requirements.
6314.
Application of exclusions to aliens leaving Guam, Puerto Rico, or the Virgin Islands.
SUBCHAPTER II—PROCEDURE
6331.
Exclusion proceedings.
6332.
Administrative appeals.
6333.
Right to counsel.
6334.
Judicial review.
6335.
Deportation of excluded aliens.
6336.
Costs of deporting excluded aliens.
SUBCHAPTER I—GROUNDS FOR EXCLUSION
§ 6301. Fraud and misrepresentation
(a) GENERAL.—An alien shall be excluded from admission to the United
States if the alien—
(1) by fraud or willful misrepresentation of a material fact obtained,
or attempted or attempts to obtain, a visa, other documentation, entry
into the United States, or another benefit under this title (except sub-
chapter I of chapter 5, subchapters III and IV of chapter 131, and
chapters 133–137); or
(2) is the subject of a final order for violation of section 10125(b)
of this title.
(b) WAIVERS.—The Attorney General may waive subsection (a)(1) of this
section for an immigrant if—
(1) the immigrant is the spouse, parent, son, or daughter of a citizen
of the United States or of an immigrant lawfully admitted for perma-
nent residence; or
(2) the fraud or misrepresentation occurred at least 10 years before
the date of the immigrant’s application for a visa, entry, or change of
status and the Attorney General is satisfied that the immigrant’s ad-
mission would not be contrary to the welfare, safety, or security of the
United States.
141
§ 6302. Health
(a) GENERAL.—An alien shall be excluded from admission to the United
States if the alien is found—
(1) under regulations prescribed by the Secretary of Health and
Human Services, to have a communicable disease of public health sig-
nificance (including infection with the etiologic agent for acquired im-
mune deficiency syndrome);
(2) under regulations prescribed by the Secretary in consultation
with the Attorney General—
(A) to have a physical or mental disorder and behavior associ-
ated with the disorder that may pose, or has posed, a threat to
the property, safety, or welfare of the alien or others; or
(B) to have had a physical or mental disorder and a history of
behavior associated with the disorder that has posed a threat to
the property, safety, or welfare of the alien or others and is likely
to recur or to lead to other harmful behavior; or
(3) under regulations prescribed by the Secretary, to be a drug
abuser or addict.
(b) WAIVERS.—(1) The Attorney General may waive—
(A) subsection (a)(1) of this section for an alien who—
(i) is the spouse, unmarried son, unmarried daughter, or adopt-
ed child of a citizen of the United States, of an alien lawfully ad-
mitted for permanent residence, or of an alien who has been
granted an immigrant visa; or
(ii) has a son or daughter who is a citizen of the United States,
an alien lawfully admitted for permanent residence, or an alien
who has been granted an immigrant visa; or
(B) subsection (a)(2) of this section for any alien.
(2) A waiver under this subsection is subject to any conditions, including
filing a bond, that the Attorney General may prescribe by regulation after
consultation with the Secretary.
§ 6303. Protection and guardianship of aliens excluded for
health or infancy
An alien shall be excluded from admission to the United States if—
(1) the alien is accompanying another alien ordered excluded and de-
ported and certified to be helpless because of sickness, disability, or in-
fancy under section 6104(a)(2)(B) of this title; and
(2) the alien’s protection or guardianship is required by the alien or-
dered excluded and deported.
142
§ 6304. Public charges
(a) GENERAL.—An alien shall be excluded from admission to the United
States if the consular officer believes, at the time of the application for a
visa, or the Attorney General believes, at the time of the application for ad-
mission or change of status, that the alien is likely at any time to become
a public charge.
(b) ADMISSION ON BOND.—(1) The Attorney General may admit an alien
excludable under subsection (a) of this section if the alien is otherwise ad-
missible and files a bond approved by the Attorney General. The bond
shall—
(A) be in an amount and contain conditions the Attorney General
prescribes; and
(B) be for the benefit of the United States, States, territories and
possessions of the United States, political subdivisions of States, and
districts of States, territories, possessions, and political subdivisions of
States, holding them harmless against the alien’s becoming a public
charge.
(2) When the alien permanently leaves the United States, is naturalized,
or dies, the bond ends and the security held to secure performance, except
to the extent forfeited for a violation of the bond, shall be returned to the
person providing it or to the person’s legal representative.
(3) The Attorney General may bring a civil action on the bond in the
name of the United States for the benefit of the United States or of a State,
territory, possession, political subdivision, or district in which the alien is
a public charge, regardless of whether a demand for payment of public ex-
penses has been made.
§ 6305. Stowing Away
An alien shall be excluded from admission to the United States if the
alien is a stowaway.
§ 6306. Encouraging others to enter illegally
(a) GENERAL.—An alien shall be excluded from admission to the United
States if the alien at any time knowingly encouraged, induced, or assisted
another alien to enter or attempt to enter the United States in violation of
law.
(b) NONAPPLICATION.—Subsection (a) of this section does not apply to
an alien who—
(1) is an eligible immigrant (as defined by section 301(b) of the Im-
migration Act of 1990 (Public Law 101–649, 104 Stat. 5029));
(2) was physically present in the United States on May 5, 1988;
(3) is seeking—
(A) admission as an immediate relative;
143
(B) admission under section 4103(c) of this title (including
under section 112 of the Immigration Act of 1990 (Public Law
101–649, 104 Stat. 4987)); or
(C) benefits under section 301(a) of that Act (104 Stat. 5029);
and
(4) before May 5, 1988, encouraged, induced, or assisted only the
alien’s spouse, parent, son, or daughter (and no other individual) to
enter the United States in violation of law.
(c) WAIVERS.—The Attorney General may waive subsection (a) of this
section for humanitarian purposes, to ensure family unity, or when it is oth-
erwise in the public interest, for an alien who—
(1)(A) is lawfully admitted for permanent residence, temporarily left
the United States voluntarily and not under an order of deportation,
and is otherwise admissible as a returning resident under section
4311(b) of this title; or
(B) is seeking admission or change of status as an immediate rel-
ative or immigrant under section 4103(b), (c), or (d) of this title; and
(2) has encouraged, induced, or assisted only the alien’s spouse, par-
ent, son, or daughter (and no other individual) to enter the United
States in violation of law.
§ 6307. Criminal and immoral acts
(a) GENERAL.—Each of the following aliens shall be excluded from ad-
mission to the United States:
(1) an alien who has been convicted of, admits having committed, or
admits having committed acts that are the essential elements of, an of-
fense involving moral turpitude (except a purely political offense), but
this clause does not apply to an alien who has committed only one of-
fense if—
(A) the alien committed the offense when less than 18 years of
age, and committed the offense and was released from any con-
finement imposed for the offense more than 5 years before apply-
ing for a visa or other documentation and for admission; or
(B) the maximum imprisonment for the offense was not more
than one year and the alien was not sentenced to more than 6
months, regardless of the extent to which the sentence was finally
executed.
(2) an alien who has been convicted of, admits having committed, or
admits having committed acts that are the essential elements of, a vio-
lation of, or a conspiracy to violate, a law or regulation of a State, the
United States, or a foreign country related to a controlled substance
144
(as defined by section 102 of the Comprehensive Drug Abuse Preven-
tion and Control Act of 1970 (21 U.S.C. 802)).
(3) an alien who a consular officer or an immigration officer knows
or reasonably believes is or has been—
(A) unlawfully trafficking in a controlled substance (as defined
by section 102 of the Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 U.S.C. 802)); or
(B) knowingly assisting, abetting, conspiring, or colluding with
others in unlawfully trafficking in such a controlled substance.
(4) an alien who has been convicted of at least 2 offenses (except
purely political offenses) for which the sentences to confinement actu-
ally imposed total at least 5 years, regardless of whether—
(A) the convictions were in a single trial;
(B) the offenses arose from a single scheme of misconduct; or
(C) the offenses involved moral turpitude.
(5) an alien who—
(A) is coming to the United States only, principally, or inciden-
tally to engage in prostitution, or has engaged in prostitution
within 10 years of the date of applying for a visa, admission, or
change of status;
(B)(i) procures or attempts to procure individuals for prostitu-
tion;
(ii) within that 10-year period, procured or attempted to pro-
cure or to import individuals for prostitution; or
(iii) receives or, within that 10-year period, received any part of
the proceeds of prostitution; or
(C) is coming to the United States to engage in any other un-
lawful commercialized vice, whether or not related to prostitution.
(6) an alien who is coming to the United States to practice polyg-
amy.
(7) an alien—
(A) who has committed in the United States at any time—
(i) a felony;
(ii) a crime of violence (as defined by section 16 of title
18); or
(iii) an offense of reckless driving or driving when intoxi-
cated or under the influence of alcohol or a prohibited sub-
stance if the offense involved personal injury to another;
(B) for whom immunity from criminal jurisdiction was exercised
for that offense;
145
(C) who as a consequence of the offense and exercise of immu-
nity has left the United States; and
(D) who subsequently has not submitted completely to the juris-
diction of the court in the United States having jurisdiction of
that offense.
(b) WAIVERS.—The Attorney General may waive subsection (a)(1), (4),
(5), or (7) of this section, or subsection (a)(2) of this section for a single
offense of simple possession of not more than 30 grams of marijuana, for
an immigrant if—
(1)(A) the Attorney General is satisfied that—
(i) the immigrant is excludable only under subsection (a)(5)(A)
or (B) of this section or the activities for which the immigrant is
excludable occurred more than 15 years before the date of the im-
migrant’s application for a visa, admission, or change of status;
(ii) the immigrant’s admission would not be contrary to the wel-
fare, safety, or security of the United States; and
(iii) the immigrant has been rehabilitated; or
(B) the immigrant is the spouse, parent, son, or daughter of a citi-
zen of the United States or of an alien lawfully admitted for permanent
residence and the Attorney General is satisfied that the immigrant’s ex-
clusion would result in extreme hardship to the citizen or to the alien
lawfully admitted for permanent residence;
(2) the Attorney General consents (subject to conditions and proce-
dures the Attorney General may prescribe by regulation) to the immi-
grant’s applying or reapplying for a visa, admission, or change of sta-
tus; and
(3) the immigrant has not been convicted of, or admitted committing
acts that constitute, murder or a criminal act involving torture.
§ 6308. National security
(a) GENERAL.—An alien shall be excluded from admission to the United
States if a consular officer or the Attorney General knows or reasonably be-
lieves that the alien seeks to enter the United States to engage only, prin-
cipally, or incidentally in—
(1) an activity to violate—
(A) a law of the United States related to espionage or sabotage;
or
(B) a law prohibiting the export from the United States of
goods, technology, or sensitive information;
(2) any other unlawful activity; or
146
(3) an activity a purpose of which is to oppose, control, or overthrow
the United States Government by force, violence, or other unlawful
means.
(b) TERRORIST ACTIVITIES.—(1) In this subsection—
(A) ‘‘terrorist activity’’ means an activity that is unlawful under the
laws of the place where the activity is committed or that, if committed
in the United States, would be unlawful under the laws of the United
States or any State, and that involves—
(i) highjacking or sabotaging a vessel, aircraft, vehicle, or other
conveyance;
(ii) seizing or detaining, and threatening to kill, injure, or con-
tinue to detain, another individual to compel a third person (in-
cluding a governmental entity) to do or abstain from doing an act
as an explicit or implicit condition for the release of the individual
seized or detained;
(iii) a violent attack on an internationally protected person (as
defined by section 1116(b)(4) of title 18) or on the liberty of such
a person;
(iv) an assassination;
(v) the use, with intent to endanger the safety of an individual
or to cause substantial damage to property, of a biological agent,
chemical agent, or nuclear weapon or device, or an explosive or
firearm (except only for personal monetary gain); or
(vi) a threat, attempt, or conspiracy to do an activity described
by subclauses (i)–(v) of this clause.
(B) ‘‘engage in terrorist activity’’ means to commit, in an individual
capacity or as a member of an organization, a terrorist activity or an
act that the actor knows or reasonably should know gives material sup-
port to an individual, organization, or government in conducting a ter-
rorist activity at any time, including—
(i) preparing or planning a terrorist activity;
(ii) gathering information on potential targets for terrorist ac-
tivity;
(iii) providing any type of material support, including a safe
house, transportation, communication, money, false identification,
weapon, explosive, or training, to an individual the actor knows or
reasonably should know has committed or plans to commit a ter-
rorist activity;
(iv) soliciting money or another thing of value for a terrorist ac-
tivity or a terrorist organization; and
147
(v) soliciting an individual for membership in a terrorist organi-
zation or terrorist government or to engage in a terrorist activity.
(C) an alien who is an officer, official, representative, or spokes-
person of the Palestine Liberation Organization is deemed under sub-
paragraph (B) of this paragraph to be engaged in a terrorist activity.
(2) An alien shall be excluded from admission to the United States if—
(A) the alien has engaged in a terrorist activity; or
(B) a consular officer or the Attorney General knows or reasonably
believes that the alien is likely to engage in a terrorist activity after
entry.
(c) FOREIGN POLICY.—(1) An alien shall be excluded from admission to
the United States if the Secretary of State reasonably believes that the
alien’s entry or proposed activities in the United States would have poten-
tially serious adverse foreign policy consequences for the United States.
(2) An alien who is an official of a government of a foreign country or
a purported government, or who is a candidate for election to a government
office of a foreign country during the period immediately before the election
for that office, may not be excluded or subject to restrictions or conditions
on entry under paragraph (1) of this subsection only because of the alien’s
past, current, or expected beliefs, statements, or associations, if the beliefs,
statements, or associations would be lawful in the United States.
(3) An alien not described by paragraph (2) of this subsection may not
be excluded or subject to restrictions or conditions on entry under para-
graph (1) of this subsection because of the alien’s past, current, or expected
beliefs, statements, or associations, if the beliefs, statements, or associations
would be lawful in the United States, unless the Secretary of State person-
ally decides that the alien’s admission would compromise a compelling for-
eign policy interest of the United States.
(4) If the Secretary decides under paragraph (3) of this subsection that
an alien’s admission would compromise a compelling foreign policy interest
of the United States, the Secretary shall give timely notice of the alien’s
identity and the reasons for the decision to the chairmen of the Committees
on the Judiciary and Foreign Affairs of the House of Representatives and
the Committees on the Judiciary and Foreign Relations of the Senate.
(d) MEMBERSHIP IN TOTALITARIAN PARTY.—(1) An immigrant shall be
excluded from admission to the United States if the immigrant is or has
been a member of or affiliated with the Communist or any other domestic
or foreign totalitarian party, including a subdivision or affiliate of that
party.
(2) Paragraph (1) of this subsection does not apply to an immigrant be-
cause of membership or affiliation if the immigrant satisfies the consular
148
officer when applying for a visa, or the Attorney General when applying for
admission, that the membership or affiliation is or was—
(A) involuntary;
(B) only before the alien’s 16th birthday;
(C) only by operation of law; or
(D) only to obtain employment, food rations, or other essentials of
living and the membership or affiliation is or was necessary to obtain
the employment, rations, or essentials.
(3) Paragraph (1) of this subsection does not apply to an immigrant be-
cause of membership or affiliation if the immigrant satisfies the consular
officer when applying for a visa, or the Attorney General when applying for
admission, that—
(A) the membership or affiliation ended at least—
(i) 2 years before the date of applying; or
(ii) 5 years before the date of applying, if the membership or
affiliation was with the party controlling the government of a for-
eign country that is a totalitarian dictatorship as of that date; and
(B) the immigrant is not a threat to the security of the United
States.
(4) The Attorney General may waive paragraph (1) of this subsection for
an immigrant for humanitarian purposes, to ensure family unity, or when
it is otherwise in the public interest, if the immigrant—
(A) is the parent, spouse, son, daughter, brother, or sister of a citi-
zen of the United States or the spouse, son, or daughter of an alien
lawfully admitted for permanent residence; and
(B) is not a threat to the security of the United States.
§ 6309. Participation in Nazi persecution or genocide
An alien shall be excluded from admission to the United States if the
alien—
(1) at any time during the period from March 23, 1933, through
May 8, 1945, ordered, incited, assisted, or otherwise participated in the
persecution of any person because of race, religion, national origin, or
political opinion, under the direction of, or in association with—
(A) the Nazi government of Germany;
(B) any government in an area occupied by the military forces
of the Nazi government of Germany;
(C) any government established with the assistance or coopera-
tion of the Nazi government of Germany; or
(D) any government that was an ally of the Nazi government
of Germany; or
149
(2) engaged in conduct that is defined as genocide under the Inter-
national Convention on the Prevention and Punishment of Genocide.
§ 6310. Prior deportation or removal
(a) PRIOR EXCLUSION AND DEPORTATION.—An alien shall be excluded
from admission to the United States if the alien has been excluded and de-
ported and is seeking admission within one year after the date of deporta-
tion.
(b) OTHER PRIOR DEPORTATION OR REMOVAL.—Each of the following
aliens shall be excluded from admission to the United States if the alien
is seeking admission within 5 years (or, if convicted of an aggravated felony,
within 20 years) after the date of the deportation or removal:
(1) an alien who has been arrested and deported.
(2) an alien who has fallen into distress and been removed under this
title or a prior law.
(3) an alien who has been removed as an alien enemy.
(4) an alien who has been removed at the expense of the United
States Government under section 6539(e)(1) of this title instead of
being deported.
(c) NONAPPLICATION.—Subsections (a) and (b) of this section do not
apply to an alien if the Attorney General consents, before the alien begins
to travel to the United States from a place outside the United States or
attempts to be admitted from foreign contiguous territory, to the alien’s ap-
plying or reapplying for admission.
§ 6311. Ineligibility for citizenship and evasion of military
service
An alien shall be excluded from admission to the United States if the
alien—
(1) is permanently ineligible for citizenship; or
(2) left or remained outside the United States to avoid or evade
training or service in the armed forces of the United States during war
or a period declared by the President to be a national emergency, un-
less the alien was a nonimmigrant at the time of leaving the United
States and is seeking to reenter the United States as a nonimmigrant.
§ 6312. International child abduction
(a) GENERAL.—If, after a court in the United States has granted to an
individual the custody of a child who is a citizen of the United States, an
alien detains or withholds custody of the child outside the United States
from the individual granted custody by the court, the alien shall be excluded
from admission to the United States until the child is surrendered to the
individual granted custody by the court.
150
(b) NONAPPLICATION.—Subsection (a) of this section does not apply as
long as the child is located in a foreign country whose government is a party
to the Hague Convention on the Civil Aspects of International Child Abduc-
tion.
§ 6313. Noncompliance with documentation requirements
(a) GENERAL DOCUMENTATION REQUIREMENTS.—An alien shall be ex-
cluded from admission to the United States if the alien is seeking admission
as—
(1) a nonimmigrant and does not satisfy the documentation require-
ments of section 2121 of this title; or
(2) an immigrant and does not satisfy the documentation require-
ments of section 4311 of this title or the alien’s immigrant visa was
issued without being in compliance with sections 4103–4106 of this
title.
(b) REQUIREMENTS
OF GRADUATES
OF NON-ACCREDITED MEDICAL
SCHOOLS.—An alien shall be excluded from admission to the United States
if the alien—
(1) is seeking admission as an immigrant principally to perform serv-
ices as a member of the medical profession;
(2) is a graduate of a medical school not accredited by an entity ap-
proved by the Secretary of Education; and
(3) has not satisfied the requirements of section 4104(g)(1) of this
title.
(c) LABOR CERTIFICATIONS.—An alien shall be excluded from admission
to the United States if the alien is seeking admission as an immigrant to
perform skilled or unskilled labor and the Secretary of Labor has not made
the certification required by section 4104(g)(2) of this title.
§ 6314. Application of exclusions to aliens leaving Guam,
Puerto Rico, or the Virgin Islands
An alien who leaves Guam, Puerto Rico, or the Virgin Islands and tries
to enter the continental United States or another place under the jurisdic-
tion of the United States is subject to this subchapter and section 4104(g)
of this title. Such an alien who is excluded from admission to the United
States shall be deported immediately in the way provided by section 6335
of this title.
SUBCHAPTER II—PROCEDURE
§ 6331. Exclusion proceedings
(a) PROCEEDING REQUIREMENTS.—(1) When an arriving alien is de-
tained under section 6103(c)(2) of this title for further inquiry about the
alien’s admissibility, a special inquiry officer shall conduct a proceeding
151
under this section to decide whether the alien is to be admitted or excluded
and deported.
(2) Sections 303 (a) and (b) and 6103(d) of this title apply to a proceed-
ing under this section.
(3) The Attorney General may prescribe regulations for conducting pro-
ceedings under this section.
(4) The procedure provided by this section and regulations prescribed
under this section is the only procedure for deciding on the admissibility of
an alien under this section.
(b) OFFICER NOT TO HAVE PARTICIPATED IN INVESTIGATION OR PROS-
ECUTION.—A proceeding under this section shall be conducted by a special
inquiry officer who did not participate in investigating or (except as pro-
vided by this section) prosecuting the case against the alien.
(c) CLOSED PROCEEDINGS.—A proceeding under this section shall be
closed to the public. However, the alien is entitled—
(1) to have one friend or relative present under conditions prescribed
by the Attorney General; and
(2) to be represented by counsel as provided by section 6333 of this
title.
(d) PRESENTATION OF EVIDENCE.—The special inquiry officer shall ad-
minister oaths, present and receive evidence, and interrogate, examine, and
cross-examine the alien and witnesses.
(e) BURDEN
OF PROOF.—An individual seeking to enter the United
States has the burden of proving that the individual is not subject to exclu-
sion.
(f) RECORD OF PROCEEDING.—A complete record of the proceeding, in-
cluding the testimony and evidence produced at the proceeding, shall be
kept.
(g) DECISIONS.—(1) The decision of a special inquiry officer in a pro-
ceeding under this section shall be based only on the evidence produced at
the proceeding. If a medical officer, private physician, or board of medical
officers has certified under section 6104 of this title that the alien has a
condition described by section 6302(a) of this title, the decision of the spe-
cial inquiry officer shall be based only on the certification.
(2) A decision of a special inquiry officer on whether to exclude an alien
is final unless reversed on appeal to the Attorney General under section
6332 of this title. An alien who has a right to appeal under section 6332
shall be informed of that right.
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§ 6332. Administrative appeals
(a) APPEALS BY ALIENS.—An alien may appeal to the Attorney General
an order of a special inquiry officer excluding the alien, except when the
alien is—
(1) a stowaway;
(2) excluded temporarily under section 6103(d) of this title; or
(3) excluded based on a certification under section 6104 of this title.
(b) APPEALS BY IMMIGRATION OFFICERS.—The immigration officer in
charge of the port at which a proceeding under section 6331 of this title
is conducted may appeal to the Attorney General an order of a special in-
quiry officer admitting an alien.
(c) TIME FOR APPEALING AND STAYING ACTIONS.—An appeal under this
section must be timely. The appeal stays final action in the proceeding until
the Attorney General makes a final decision.
(d) DECISIONS.—Except as provided by section 6103(d) of this title, the
Attorney General shall decide the appeal based only on the evidence in the
proceeding before the special inquiry officer.
§ 6333. Right to counsel
In an exclusion proceeding before a special inquiry officer and in an ap-
peal before the Attorney General from an exclusion proceeding, an alien is
entitled to be represented, at no cost to the United States Government, by
the alien’s choice of counsel authorized to practice in the proceeding or
appeal.
§ 6334. Judicial review
(a) JUDICIAL REVIEW.—An alien may obtain judicial review of a final
order of exclusion only by a habeas corpus proceeding and only if—
(1) the alien has exhausted all administrative remedies available to
the alien as of right under the immigration laws and regulations;
(2) the alien has remained in the United States after the order was
issued; and
(3) the validity of the order has not been decided in a prior judicial
proceeding, unless the reviewing court finds that the petition for habeas
corpus presents grounds that could not have been presented in the
prior proceeding or that the remedy provided by the prior proceeding
was inadequate or ineffective to test the validity of the order.
(b) CONTENTS OF PETITIONS.—A petition for habeas corpus shall state
whether the validity of the order of exclusion has been upheld in a prior
judicial proceeding, and, if so, shall state the name of the court, the date
of the court’s ruling, and the nature of the proceeding.
153
§ 6335. Deportation of excluded aliens
(a) IMMEDIATE DEPORTATION.—Except as provided by subsection (d) of
this section, an alien (except an alien crewmember) arriving in the United
States who is excluded under this title shall be immediately deported.
(b) PLACE OF DEPORTATION.—(1) Except as provided by paragraphs (2)
and (3) of this subsection, deportation under this section shall be to the
country in which the alien boarded the vessel or aircraft on which the alien
arrived in the United States.
(2) If the alien boarded the vessel or aircraft on which the alien arrived
in the United States in a foreign territory contiguous to the United States,
an island adjacent to the United States, or an island adjacent to a foreign
territory contiguous to the United States, and the alien is not a native, citi-
zen, subject, or national of, or does not reside in, the territory or island,
deportation shall be to the country in which the alien boarded the vessel
or aircraft that transported the alien to the territory or island.
(3) If the government of the country designated in paragraph (1) or (2)
of this subsection is unwilling to accept the alien into that country’s terri-
tory, deportation shall be to any of the following countries, as directed by
the Attorney General:
(A) the country of which the alien is a citizen, subject, or national.
(B) the country in which the alien was born.
(C) the country in which the alien has a residence.
(D) a country with a government that will accept the alien into the
country’s territory if deportation to a country described by clauses (A)–
(C) of this paragraph is impracticable, inadvisable, or impossible.
(c) DEPORTATION VESSELS, AIRCRAFT, AND ACCOMMODATIONS.—(1)
Deportation under this section shall be on a vessel or aircraft owned by the
owner of the vessel or aircraft on which the alien arrived in the United
States, unless it is impracticable to deport the alien on one of those vessels
or aircraft within a reasonable time.
(2) The alien shall be deported in accommodations of the same class in
which the alien arrived.
(d) STAY OF DEPORTATION.—(1) The Attorney General may stay the de-
portation of an alien under this section if the Attorney General decides
that—
(A) immediate deportation is not practicable or proper; or
(B) the alien is needed to testify for the United States Government
in the prosecution of a person for a violation of a law of the United
States.
(2) During the period an alien is detained because of a stay of deporta-
tion under paragraph (1)(B) of this subsection, the Attorney General may
154
pay from the appropriation ‘‘Immigration and Naturalization Service—Sala-
ries and Expenses’’—
(A) the cost of maintenance of the alien; and
(B) a witness fee of $1 a day.
(3) The Attorney General may release an alien, whose deportation is
stayed under paragraph (1)(B) of this subsection, on—
(A) the alien’s filing a bond of at least $500 with security approved
by the Attorney General;
(B) condition that the alien appear when required as a witness and
for deportation; and
(C) other conditions the Attorney General may prescribe.
§ 6336. Costs of deporting excluded aliens
When an alien is ordered excluded and deported, the owner of the vessel
or aircraft on which the alien arrived in the United States shall pay the
transportation cost of deporting the alien. If deportation is on a vessel or
aircraft not owned by the owner of the vessel or aircraft on which the alien
arrived in the United States, the Attorney General may—
(1) pay the cost from the appropriation ‘‘Immigration and Natu-
ralization Service—Salaries and Expenses’’; and
(2) recover the amount of the cost in a civil action from the owner,
agent, or consignee of the vessel or aircraft on which the alien arrived
in the United States.
CHAPTER 65—DEPORTATION OF ALIENS IN THE UNITED
STATES
SUBCHAPTER I—GROUNDS FOR DEPORTATION
Sec.
6501.
Excludable at time of entry or change of status or in the United States illegally.
6502.
Marriage fraud and failure to marry timely.
6503.
Public charges.
6504.
Failure to maintain classification or status or satisfy entry conditions.
6505.
Encouraging others to enter illegally.
6506.
Criminal offenses.
6507.
Failure to register and falsification of documents.
6508.
National security.
6509.
Participation in Nazi persecution or genocide.
6510.
Nonapplication of certain grounds to special immigrants dependent on juvenile court.
SUBCHAPTER II—PROCEDURE
6531.
Arrest and detention pending decision on deportation.
6532.
Deportation proceedings.
6533.
Expeditious proceedings for convicted aliens.
6534.
Right to counsel.
6535.
Judicial review.
6536.
Detention, release, and deportation of aliens ordered deported.
6537.
Countries to which aliens may be deported.
6538.
Suspension of deportation.
6539.
Voluntary departure and removal.
6540.
Ineligibility for discretionary relief for failure to appear.
6541.
Duties of private parties and costs of deportation.
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SUBCHAPTER I—GROUNDS FOR DEPORTATION
§ 6501. Excludable at time of entry or change of status or in
the United States illegally
(a) GENERAL.—An alien shall be deported if the alien—
(1) was excludable at the time of entry or change of status under
a law in effect at that time;
(2) entered the United States—
(A) without being inspected; or
(B) at a time or place not designated by an immigration officer;
or
(3) is in the United States in violation of a law of the United States.
(b) WAIVERS FOR CERTAIN MISREPRESENTATIONS.—(1) The Attorney
General may waive subsection (a)(1) of this section for an alien (except an
alien deportable under section 6509 of this title) who was excludable under
section 6301(a)(1) of this title at the time of entry if the alien—
(A) is the spouse, parent, son, or daughter of a citizen of the United
States or of an alien lawfully admitted for permanent residence;
(B) had an immigrant visa or equivalent documentation at the time
of entry; and
(C) was otherwise admissible at the time of entry, except under sec-
tion 4104(g)(2) or 4311(a)(1) of this title as a direct result of the
fraud or misrepresentation.
(2) A waiver of deportation under paragraph (1) of this subsection for
fraud or misrepresentation is also a waiver of deportation based on other
grounds of inadmissibility at the time of entry directly resulting from the
fraud or misrepresentation.
§ 6502. Marriage fraud and failure to marry timely
(a) MARRIAGE FRAUD.—(1) An alien shall be deported if—
(A) the alien obtained entry into the United States with an immi-
grant visa or other documentation obtained because of a marriage en-
tered into less than 2 years before the alien’s entry that was judicially
annulled or terminated within 2 years after the alien’s entry; or
(B) the Attorney General is satisfied that the alien failed to fulfill
the alien’s marital agreement that, in the opinion of the Attorney Gen-
eral, was made to obtain entry into the United States as an immigrant.
(2) Paragraph (1)(A) of this subsection does not apply to an alien who
satisfies the Attorney General that the marriage was not made to evade the
immigration laws.
(b) FAILURE TO MARRY WITHIN 90 DAYS.—An alien who enters the
United States as a nonimmigrant under section 2309(a) of this title, and
a minor child of the alien accompanying or following to join the alien, shall
156
leave the United States if, with 90 days after entry, the alien does not
marry the citizen who filed the petition for the alien under section 2309(b)
of this title. If they do not leave, they shall be deported.
§ 6503. Public charges
An alien shall be deported if the alien, within 5 years after entry, has
become a public charge from causes not affirmatively shown to have arisen
since entry.
§ 6504. Failure to maintain classification or status or satisfy
entry conditions
(a) NONIMMIGRANT CLASSIFICATION NOT MAINTAINED.—(1) Subject to
paragraph (2) of this subsection, an alien admitted to the United States as
a nonimmigrant shall be deported if the alien does not—
(A) maintain the nonimmigrant classification under which the alien
was admitted or to which the classification was changed under section
9108 of this title; or
(B) comply with a condition of the nonimmigrant classification.
(2) An alien admitted as a nonimmigrant under section 2301(1) or
2302(1) of this title and not maintaining the nonimmigrant classification
under which the alien was admitted may be deported only if—
(A) the Secretary of State approves; or
(B) the alien is deportable under section 6508 or 6509 of this title.
(b) NONCOMPLIANCE WITH HEALTH WAIVER CONDITIONS.—An alien
admitted to the United States as a result of a waiver under section 6302(b)
of this title shall be deported if the Secretary of Health and Human Serv-
ices certifies that the alien has not complied with a condition of the waiver.
(c) SPECIAL AGRICULTURAL WORKERS.—An alien lawfully admitted for
temporary residence under section 210A of the Immigration and Nationality
Act shall be deported if the alien does not meet the requirement of section
210A(d)(5)(A) of that Act by the end of the applicable period.
(d) TERMINATION OF CONDITIONAL PERMANENT RESIDENT STATUS.—
An alien lawfully admitted for permanent residence on a conditional basis
under chapter 45 of this title shall be deported if the status is terminated.
However, this subsection does not apply if a waiver is granted under section
4506(b) of this title.
§ 6505. Encouraging others to enter illegally
(a) GENERAL.—An alien shall be deported if the alien, before or within
5 years after entry, knowingly has encouraged, induced, or assisted another
alien to enter or attempt to enter the United States in violation of law.
(b) NONAPPLICATION.—Subsection (a) of this section does not apply to
an alien who—
157
(1) is an eligible immigrant (as defined by section 301(b) of the Im-
migration Act of 1990 (Public Law 101–649, 104 Stat. 5029));
(2) was physically present in the United States on May 5, 1988;
(3) is seeking—
(A) admission as an immediate relative;
(B) admission under section 4103(c) of this title (including
under section 112 of the Immigration Act of 1990 (Public Law
101–649, 104 Stat. 4987)); or
(C) benefits under section 301(a) of that Act (104 Stat. 5029);
and
(4) before May 5, 1988, encouraged, induced, or assisted only the
alien’s spouse, parent, son, or daughter (and no other individual) to
enter the United States in violation of law.
(c) WAIVERS.—The Attorney General may waive subsection (a) of this
section for humanitarian purposes, to ensure family unity, or when it is oth-
erwise in the public interest, for an alien who—
(1) is lawfully admitted for permanent residence; and
(2) has encouraged, induced, or assisted only the alien’s spouse, par-
ent, son, or daughter (and no other individual) to enter the United
States in violation of law.
§ 6506. Criminal offenses
(a) MORAL TURPITUDE AND AGGRAVATED FELONIES.—(1) An alien shall
be deported if the alien is convicted—
(A) of an offense involving moral turpitude committed within 5 years
after entry and is sentenced to confinement or is confined for the of-
fense in a prison or correctional institution for at least one year;
(B) after entry, of at least 2 offenses involving moral turpitude not
arising out of a single scheme of misconduct, regardless of whether the
convictions were in a single trial or the alien was confined for the of-
fenses; or
(C) after entry, of an aggravated felony.
(2) Paragraph (1) of this subsection does not apply to a conviction of an
alien if the President or the chief executive officer of a State has granted
the alien a full and unconditional pardon.
(b) CONTROLLED SUBSTANCES.—An alien shall be deported if the alien—
(1) is convicted, after entry, of violating, or conspiring or attempting
to violate, a law or regulation of a State, the United States, or a for-
eign country related to a controlled substance (as defined by section
102 of the Comprehensive Drug Abuse Prevention and Control Act of
1970 (21 U.S.C. 802)), except a single offense of possession for one’s
own use of not more than 30 grams of marijuana; or
158
(2) is, or at any time after entry has been, a drug abuser or addict.
(c) FIREARMS.—An alien shall be deported if the alien, after entry, is
convicted under any law of purchasing, selling, offering for sale, exchanging,
using, owning, possessing, or carrying in violation of law any weapon, part,
or accessory that is a firearm or destructive device (as defined by section
921(a) of title 18).
(d) MISCELLANEOUS.—An alien shall be deported if the alien has been
convicted at any time (and the judgment has become final) of violating or
conspiring or attempting to violate—
(1) section 501 or 10151 of this title;
(2) chapter 37, 105, or 115 of title 18 if a term of imprisonment
of at least 5 years may be imposed;
(3) section 871 or 960 of title 18;
(4) the Trading with the Enemy Act (50 App. U.S.C. 1 et seq.); or
(5) the Military Selective Service Act (50 App. U.S.C. 451 et seq.);
§ 6507. Failure to register and falsification of documents
(a) ADDRESS NOTIFICATION.—An alien shall be deported if the alien has
not complied with section 8104 of this title, unless the Attorney General is
satisfied that the noncompliance was reasonably excusable or not willful.
(b) FAILURE TO REGISTER AND FALSIFICATION OF DOCUMENTS.—An
alien shall be deported if the alien has been convicted at any time of—
(1) violating section 10145 of this title;
(2) violating section 36(c) of the Alien Registration Act, 1940;
(3) violating or conspiring to violate the Foreign Agents Registration
Act of 1938, as amended (22 U.S.C. 611 et seq.);
(4) violating the Act of August 1, 1956 (50 U.S.C. 851 et seq.) or
a regulation under that Act; or
(5) violating or conspiring to violate section 1546 of title 18.
(c) DOCUMENT FRAUD.—An alien shall be deported if the alien is the
subject of a final order for violating section 10125 of this title.
§ 6508. National security
(a) GENERAL.—An alien shall be deported if the alien has engaged or en-
gages in—
(1) an activity to violate—
(A) a law of the United States related to espionage or sabotage;
or
(B) a law prohibiting the export from the United States of
goods, technology, or sensitive information;
(2) any other criminal activity that endangers public safety or the
security of the United States; or
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(3) an activity a purpose of which is to oppose, control, or overthrow
the United States Government by force, violence, or other unlawful
means.
(b) TERRORIST ACTIVITIES.—An alien shall be deported if the alien has
engaged or engages in a terrorist activity as defined by section 6308(b) of
this title.
(c) FOREIGN POLICY.—(1) An alien shall be deported if the Secretary of
State has reason to believe that the alien’s presence or activities in the Unit-
ed States would have potentially serious adverse foreign policy consequences
for the United States.
(2) The exceptions described by section 6308(c)(2) and (3) of this title
apply to deportability under this subsection in the same way that they apply
to excludability under section 6308(c)(1).
§ 6509. Participation in Nazi persecution or genocide
An alien described by section 6309 of this title shall be deported.
§ 6510. Nonapplication of certain grounds to special immi-
grants dependent on juvenile court
The following sections do not apply to a special immigrant as defined by
section 137(a)(12) of this title, based on circumstances that existed before
the date the alien acquired the special immigrant status:
(1) sections 6501(a) and 6504(a), (b), and (d) of this title, except
to the extent related to a ground of exclusion described by sections
6307(a)(1)–(5) or (7), 6308, or 6309 of this title.
(2) section 6507(a) of this title.
SUBCHAPTER II—DEPORTATION PROCEDURE
§ 6531. Arrest and detention pending decision on deporta-
tion
(a) ARREST, DETENTION, AND RELEASE.—On a warrant issued by the
Attorney General, an alien may be arrested and detained pending a decision
on deportation. Except as provided by subsection (c) of this section, the At-
torney General, pending a decision on deportation, may—
(1) continue to detain the arrested alien; or
(2) release the alien on—
(A) a bond of at least $500 with security approved by, and con-
taining conditions prescribed by, the Attorney General; or
(B) conditional parole.
(b) REVOCATION OF BOND OR PAROLE.—The Attorney General may re-
voke at any time a bond or parole authorized under subsection (a) of this
section, rearrest the alien under the original warrant, and detain the alien
pending a decision on deportation.
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(c) ALIENS CONVICTED OF AGGRAVATED FELONIES.—(1) The Attorney
General shall take into custody an alien convicted after November 17, 1988,
of an aggravated felony when the alien is released, whether the alien is re-
leased on parole, supervised release, or probation or may be arrested or im-
prisoned again for the same offense.
(2) To the maximum extent practicable, the Attorney General shall detain
at one facility aliens convicted after November 17, 1988, of aggravated felo-
nies and taken into custody under paragraph (1) of this subsection. In se-
lecting the facility, the Attorney General shall make a reasonable effort to
ensure that an alien’s right to counsel under section 6534 of this title is
not impaired.
(3) The Attorney General may release the alien only if the alien—
(A) was lawfully admitted to the United States; and
(B) satisfies the Attorney General that the alien is not a threat to
the community and is likely to appear for any scheduled proceeding.
(4) The Attorney General shall carry out a system—
(A) to make the investigative resources of the Immigration and Nat-
uralization Service available, daily and on a 24-hour basis, to officers
and employees of the United States Government, States, and localities
to decide whether an individual arrested by any of those officers or em-
ployees for an aggravated felony is an alien;
(B) to designate and train officers and employees of the Service in
each district to serve as liaison to law enforcement and correctional
agencies and courts of the Government, States, and localities in mat-
ters involving the arrest, conviction, and release of aliens charged with
aggravated felonies; and
(C) to maintain a current record, using computer resources, of aliens
who have been convicted after November 17, 1988, of aggravated felo-
nies and deported.
(5) The record referred to in paragraph (4)(C) of this subsection shall
be made available to inspectors at ports of entry and to border patrol agents
at sector headquarters to help identify aliens who have been convicted after
November 17, 1988, of aggravated felonies and deported and who are at-
tempting to reenter the United States.
(d) HABEAS CORPUS.—In a habeas corpus proceeding, a court of com-
petent jurisdiction may review or revise a decision of the Attorney General
about an alien’s detention or release on bond or parole pending a decision
on deportation, if the alien shows conclusively that the Attorney General is
not proceeding with reasonable dispatch under the particular circumstances
to decide whether the alien is to be deported.
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§ 6532. Deportation proceedings
(a) DEFINITION.—In this section, ‘‘exceptional circumstances’’ means ex-
ceptional circumstances beyond the control of the alien, such as serious ill-
ness of the alien or death of an immediate relative but not including less
compelling circumstances.
(b) PROCEEDING REQUIREMENT.—A special inquiry officer shall conduct
a proceeding under this section to decide whether an alien is to be deported.
(c) OFFICER NOT TO HAVE PARTICIPATED IN INVESTIGATION OR PROS-
ECUTION.—A proceeding under this section shall be conducted by a special
inquiry officer who did not participate in investigating or (except as pro-
vided by this section) prosecuting the case against the alien.
(d) ORDERS TO SHOW CAUSE AND PROCEEDING NOTICES.—(1) In a de-
portation proceeding under this section, an order to show cause shall be
served—
(A) by personal delivery on the alien; or
(B) if personal delivery is not practicable, by certified mail, return
receipt requested, to the alien or any counsel of record of the alien.
(2) The order shall include notice of—
(A) the nature of the proceeding against the alien;
(B) the legal authority under which the proceeding is conducted;
(C) each act or conduct alleged to be in violation of law;
(D) each charge against the alien and the law alleged to have been
violated;
(E) the alien’s right to be represented (at no expense to the United
States Government) by counsel authorized to practice in a deportation
proceeding and to be provided a list of counsel prepared under sub-
section (e)(2) of this section;
(F) the requirements that the alien immediately must provide the At-
torney General a written record of—
(i) an address and telephone number (if any) at which the alien
may be contacted about the proceeding unless the alien has al-
ready provided this information to the Attorney General; and
(ii) any change of address or telephone number; and
(G) the consequences under subsection (j)(2) of this section of failing
to provide the address and telephone information.
(3) In the order to show cause or in a separate written notice served in
the same way as specified by paragraph (1) of this subsection, the alien
shall be notified of—
(A) the time and place of the proceeding;
(B) the consequences under subsection (j) of this section of failing
(except under exceptional circumstances) to attend the proceeding; and
162
(C) the right to be represented by counsel at the proceeding and to
be provided a period of time, as specified by subsection (e)(1) of this
section, to retain counsel and to be provided a current list of counsel
prepared under subsection (e)(2) of this section.
(4) If the time or place of the proceeding is changed, a new written notice
shall be served in the same way as specified by paragraph (1) of this sub-
section. The notice shall include the new time or place of the proceeding
and the matters specified by paragraph (3)(B) and (C) of this subsection.
(5) Notice under paragraphs (3) and (4) of this subsection is not required
for an alien not in detention if the alien has not provided an address as
required by paragraph (2)(F) of this subsection.
(6) Each order to show cause and written notice under this subsection
shall be in English and Spanish.
(7) The Attorney General shall maintain a system to record and preserve
on a timely basis notices of addresses and telephone numbers and changes
provided by aliens under paragraph (2)(F) of this subsection.
(e) DATE OF FIRST HEARING AND ASSISTANCE OF COUNSEL.—(1) To
give an alien an opportunity to retain counsel, the first date that a proceed-
ing for the alien under this section may be scheduled shall be at least 14
days after service of the order to show cause, unless the alien requests in
writing an earlier date.
(2) The Attorney General shall provide lists (updated at least quarterly)
of individuals who have indicated their availability to represent aliens with-
out charge in proceedings under this section. The lists shall be provided as
required by subsection (d)(2)(E) of this section and also shall be made gen-
erally available.
(f) ATTENDANCE OF ALIEN.—(1) An alien shall have a reasonable oppor-
tunity to attend the proceeding for the alien under this section. If it is im-
practicable for the alien to attend because of mental incompetence, the pro-
ceeding may be conducted without the alien. The Attorney General shall
prescribe safeguards for the rights and privileges of an alien who does not
attend because of mental incompetence.
(2) If an alien has been given a reasonable opportunity to attend, and
without reasonable cause does not attend or remain in attendance, the spe-
cial inquiry officer may conduct the proceeding and decide on the alien’s de-
portation as if the alien had attended.
(g) CONDUCTING PROCEEDINGS.—(1) The special inquiry officer conduct-
ing a proceeding shall administer oaths, present and receive evidence, and
interrogate, examine, and cross-examine the alien and witnesses. If the At-
torney General believes it will aid in making a decision, the Attorney Gen-
eral may require, specifically or by regulation, in a case or class of cases,
163
that an additional immigration officer be assigned to present the evidence
for the Government. The additional immigration officer may present evi-
dence and interrogate, examine, and cross-examine the alien and witnesses.
The assignment of an additional immigration officer does not affect the au-
thority of the special inquiry officer conducting the proceeding.
(2) The alien shall have a reasonable opportunity to examine the evidence
against the alien, present evidence, and cross-examine witnesses presented
by the Government.
(h) BURDEN OF PROOF.—The alien has the burden of proof of establish-
ing the alien’s time, place, and manner of entry into the United States. In
presenting the proof, the alien is entitled to the production of the alien’s
visa or other entry document and, unless considered confidential by the At-
torney General, any other relevant record in the custody of the Attorney
General. An alien who fails to sustain the burden of proof is presumed to
be in the United States in violation of law.
(i) DECISIONS AND ORDERS.—If authorized by the Attorney General, the
special inquiry officer shall make decisions on the deportability of aliens and
issue orders of deportation. A decision that an alien is deportable may be
made only on a record made in a proceeding before a special inquiry officer,
and is valid only if based on reasonable, substantial, and probative evidence.
If an alien is ordered deported under any law or treaty, the decision of the
Attorney General is final.
(j) DEPORTATION ORDERED IN ABSENTIA.—(1) An alien who does not
attend the alien’s proceeding under this section shall be ordered deported
in absentia, if the Attorney General establishes by clear, unequivocal, and
convincing evidence that—
(A) the notice required by subsection (d)(3) and (4) of this section
was provided; and
(B) the alien is deportable.
(2) The notice referred to in paragraph (1)(A) of this subsection is suffi-
cient if provided at the most recent address provided under subsection
(d)(2)(F) of this section. No notice is required if the alien has not provided
the address required by subsection (d)(2)(F).
(3)(A) A deportation order issued under this subsection may be rescinded
only on a motion to reopen—
(i) filed not later than 180 days after the date of the order if the
alien demonstrates that the failure to attend was because of exceptional
circumstances; or
(ii) filed at any time if the alien demonstrates that the alien did not
receive the notice required by subsection (d)(3) and (4) of this section
164
or that the alien was in the custody of a State or the Government and
did not attend through no fault of the alien.
(B) A motion filed under this paragraph stays the deportation of the alien
pending disposition of the motion.
(4) Notwithstanding section 6535 of this title, a petition for review under
section 6535 of a deportation order issued in absentia under this sub-
section—
(A) must be filed not later than 60 days (or 30 days if the alien
has been convicted of an aggravated felony) after the date of the final
order of deportation; and
(B) except as provided by section 6535(b)(5) of this title, shall be
limited to the issues of—
(i) the validity of the notice provided to the alien;
(ii) the reasons for the alien’s failure to attend; and
(iii) whether clear, unequivocal, and convincing evidence of de-
portability has been established.
(k) FINGERPRINTS AND PHOTOGRAPHS.—The Attorney General shall pre-
scribe regulations providing for the fingerprinting and photographing of
each alien at least 14 years of age against whom a deportation proceeding
is begun. The fingerprints and photographs shall be made available, on re-
quest, to law enforcement agencies of the Government, States, and localities.
(l) ADDITIONAL REGULATIONS AND EXCLUSIVITY OF PROCEDURE.—(1)
A proceeding under this section shall be conducted under regulations the At-
torney General shall prescribe that are consistent with this section.
(2) The procedure provided by this section and regulations prescribed
under this section is the only procedure for deciding on the deportability of
an alien under this section.
(m) REGULATIONS ON MOTIONS TO REOPEN AND TO RECONSIDER AND
ON ADMINISTRATIVE APPEALS.—Not later than May 29, 1991, the Attor-
ney General shall prescribe regulations on—
(1) the number of motions to reopen and to reconsider that may be
filed in a deportation proceeding and the time during which they may
be filed;
(2) the number of administrative appeals that may be filed in a de-
portation proceeding, the items to be included in notices of appeal, and
the time during which the appeals and the appellate and reply briefs
may be filed; and
(3) the consolidation of motions to reopen and to reconsider with the
appeal of the order of deportation.
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§ 6533. Expeditious proceedings for convicted aliens
(a) GENERAL.—If an alien is convicted of an offense that makes the alien
deportable, the Attorney General shall begin a deportation proceeding
against the alien as expeditiously as possible after the date of the conviction.
(b) ALIENS CONVICTED OF AGGRAVATED FELONIES.—The Attorney Gen-
eral shall provide for the availability of special deportation proceedings at
certain correctional facilities of the United States Government, States, and
localities for aliens convicted after November 17, 1988, of aggravated felo-
nies. Each proceeding shall be conducted—
(1) under section 6532 of this title, except as otherwise provided by
this section;
(2) in a way that eliminates the need for additional detention at a
processing center of the Immigration and Naturalization Service; and
(3) in a way that ensures expeditious deportation, if warranted, after
the alien is released from imprisonment for the felony.
(c) PRESUMPTION OF DEPORTABILITY.—An alien convicted after Novem-
ber 17, 1988, of an aggravated felony is conclusively presumed to be deport-
able from the United States.
(d) COMPLETING PROCEEDINGS BEFORE RELEASE FROM IMPRISON-
MENT.—The Attorney General shall provide for beginning and, to the extent
possible, completing a deportation proceeding against an alien convicted
after November 17, 1988, of an aggravated felony, and any administrative
appeals from that proceeding, before the alien is released from imprison-
ment for the felony.
(e) DEPORTATION DURING IMPRISONMENT.—This section does not re-
quire the Attorney General to deport an alien sentenced to imprisonment
before the alien is released from imprisonment.
§ 6534. Right to counsel
In a deportation proceeding before a special inquiry officer and in an ap-
peal before the Attorney General from a deportation proceeding, an alien
is entitled to be represented, at no cost to the United States Government,
by the alien’s choice of counsel authorized to practice in the proceeding or
appeal.
§ 6535. Judicial review
(a) APPLICABLE PROVISIONS.—Judicial review of a final order of depor-
tation is governed only by chapter 158 of title 28, except as provided by
this section.
(b) REQUIREMENTS.—(1) A petition for review must be filed—
(A) if the alien has been convicted after November 17, 1988, of an
aggravated felony, not later than 30 days after the date of the final
order of deportation; and
166
(B) for any other alien, not later than 90 days after the date of the
final order of deportation.
(2) A petition for review shall be filed with the court of appeals of the
United States for the circuit in which the petitioner resides or for the circuit
in which any part of the proceeding before a special inquiry officer was held,
but not more than one circuit.
(3) The respondent is the Attorney General. The petition shall be served
on the Attorney General and on the officer or employee of the Immigration
and Naturalization Service in charge of the Service district in which the of-
fice of the clerk of the court is located. Service of the petition on the officer
or employee stays the deportation of the alien pending the court’s decision
on the petition, unless the court orders otherwise. However, if the alien has
been convicted of an aggravated felony, service of the petition does not stay
the deportation unless the court orders otherwise.
(4) Except as provided by paragraph (5)(B) of this subsection—
(A) the court of appeals shall decide the petition only on the admin-
istrative record on which the deportation order is based; and
(B) the administrative findings of fact are conclusive if supported by
reasonable, substantial, and probative evidence on the record considered
as a whole.
(5)(A) If the petitioner claims to be a national of the United States and
the court of appeals finds from the pleadings and affidavits that no genuine
issue of material fact about the petitioner’s nationality is presented, the
court shall decide the nationality claim.
(B) If the petitioner claims to be a national of the United States and the
court of appeals finds that a genuine issue of material fact about the peti-
tioner’s nationality is presented, the court shall transfer the proceeding to
the district court of the United States for the judicial district in which the
petitioner resides for a new hearing on the nationality claim and a decision
on that claim as if an action had been brought in the district court under
section 2201 of title 28.
(C) The petitioner may have the nationality claim decided only as pro-
vided by this section.
(6) When a petitioner seeks review of an order under this section, any
review sought of a motion to reopen or reconsider the order shall be consoli-
dated with the review of the order.
(7)(A) If the validity of a deportation order has not been judicially de-
cided, a defendant in a criminal proceeding charged with violating section
6536(d) or 10153(a) of this title may challenge the validity of the order in
the criminal proceeding only by filing a separate motion before trial. The
district court, without a jury, shall decide the motion before trial.
167
(B) If the defendant claims in the motion to be a national of the United
States and the district court finds that no genuine issue of material fact
about the defendant’s nationality is presented, the court shall decide the
motion only on the administrative record on which the deportation order is
based. The administrative findings of fact are conclusive if supported by
reasonable, substantial, and probative evidence on the record considered as
a whole.
(C) If the defendant claims in the motion to be a national of the United
States and the district court finds that a genuine issue of material fact
about the defendant’s nationality is presented, the court shall hold a new
hearing on the nationality claim and decide that claim as if an action had
been brought under section 2201 of title 28.
(D) If the district court rules that the deportation order is invalid, the
court shall dismiss the indictment. The United States Government may ap-
peal the dismissal to the court of appeals for the appropriate circuit within
30 days. The defendant may not file a petition for review under this section
during the criminal proceeding. The defendant may have the nationality
claim decided only as provided by this section.
(8) This subsection—
(A) does not prevent the Attorney General, after a final order of de-
portation has been issued, from detaining the alien under section
6536(b) of this title;
(B) does not relieve the alien from complying with sections 6536(d)
and 10153(a) of this title; and
(C) except as provided by paragraph (3) of this subsection, does not
require the Attorney General to defer deportation of the alien.
(9) The record and briefs do not have to be printed. The court of appeals
shall review the proceeding on a typewritten record and on typewritten
briefs.
(10) An alien held in custody under an order of deportation may obtain
judicial review of the order by a habeas corpus proceeding.
(c) REVIEW OF FINAL ORDERS.—A court may review a final order of de-
portation only if—
(1) the alien has exhausted all administrative remedies available to
the alien as of right;
(2) the alien has remained in the United States after the order was
issued; and
(3) another court has not decided the validity of the order, unless
the reviewing court finds that the petition presents grounds that could
not have been presented in the prior judicial proceeding or that the
168
remedy provided by the prior proceeding was inadequate or ineffective
to test the validity of the order.
(d) REQUIREMENTS FOR PETITION.—A petition for review or for habeas
corpus of an order of deportation shall state whether a court has upheld
the validity of the order, and, if so, shall state the name of the court, the
date of the court’s ruling, and the kind of proceeding.
§ 6536. Detention, release, and deportation of aliens ordered
deported
(a) DEPORTATION PERIOD.—Except as otherwise provided by this sec-
tion, when an alien is ordered deported, the Attorney General has 6 months
to deport the alien from the United States. The 6-month period begins on
the latest of the following:
(1) the date the deportation order becomes administratively final.
(2) if the deportation order is judicially reviewed, the date of the
court’s final order.
(3) if the alien is detained or confined (except under an immigration
process), the date the alien is released from detention or confinement.
(b) DETENTION AND RELEASE BY THE ATTORNEY GENERAL.—During
the 6-month period, the Attorney General may—
(1) detain the alien;
(2) release the alien on a bond containing conditions the Attorney
General may prescribe; or
(3) release the alien on other conditions the Attorney General may
prescribe.
(c) HABEAS CORPUS.—In a habeas corpus proceeding, a court of com-
petent jurisdiction may review or revise a decision of the Attorney General
under subsection (b) of this section if the alien shows conclusively that the
Attorney General is not proceeding with reasonable dispatch under the par-
ticular circumstances to deport the alien within the 6-month period.
(d) SUPERVISION AFTER 6-MONTH PERIOD.—If the alien does not leave
or is not deported within the 6-month period, the alien, pending deportation,
shall be subject to supervision under regulations prescribed by the Attorney
General. The regulations shall include provisions requiring the alien—
(1) to appear before an immigration officer periodically for identi-
fication;
(2) to submit, if necessary, to a medical and psychiatric examination
at the expense of the United States Government;
(3) to give information under oath about the alien’s nationality, cir-
cumstances, habits, associations, and activities, and other information
the Attorney General considers appropriate; and
169
(4) to obey reasonable written restrictions on the alien’s conduct or
activities that the Attorney General prescribes for the alien.
(e) ALIENS IMPRISONED, ARRESTED, OR ON PAROLE, SUPERVISED RE-
LEASE, OR PROBATION.—Except as provided by section 343(a) of the Public
Health Service Act (42 U.S.C. 259(a)), the Attorney General may not de-
port an alien who is sentenced to imprisonment until the alien is released
from imprisonment. Parole, supervised release, probation, or possibility of
rearrest or further imprisonment is not a reason to defer deportation.
(f) REINSTATEMENT OF DEPORTATION ORDERS AGAINST ALIENS ILLE-
GALLY REENTERING.—If the Attorney General finds that an alien has reen-
tered the United States illegally after having been deported or having de-
parted voluntarily, under an order of deportation on any ground described
by sections 6506–6509 of this title, the prior order of deportation is rein-
stated from its original date and the alien shall be deported under the prior
order at any time after the reentry.
§ 6537. Countries to which aliens may be deported
(a) DESIGNATION BY ALIEN.—(1) An alien in the United States who has
been ordered deported may designate one country to which the alien wants
to be deported. However, the alien may designate a foreign territory contig-
uous to the United States, an adjacent island, or an island adjacent to a
foreign territory contiguous to the United States as the place to which the
alien is to be deported only if the alien is a native, citizen, subject, or na-
tional of, or has resided in, that designated territory or island. Except as
otherwise provided by this section, the Attorney General shall deport the
alien to the country the alien designates.
(2) The Attorney General may disregard a designation under paragraph
(1) of this subsection if—
(A) the alien fails to designate a country promptly;
(B) the government of the country does not inform the Attorney
General finally, within 3 months after the Attorney General first in-
quires, whether the government will accept the alien into the country;
(C) the government of the country is not willing to accept the alien
into the country; or
(D) the Attorney General decides that deporting the alien to the
country is prejudicial to the United States.
(b) ALTERNATIVE DEPORTATION COUNTRY.—If an alien is not deported
to a country under subsection (a) of this section, the Attorney General shall
deport the alien to a country of which the alien is a subject, national, or
citizen unless the government of the country—
(1) does not inform the Attorney General or the alien finally, within
3 months after the Attorney General first inquires or within another
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period of time the Attorney General decides is reasonable, whether the
government will accept the alien into the country; or
(2) is not willing to accept the alien into the country.
(c) ADDITIONAL DEPORTATION COUNTRIES.—If an alien is not deported
to a country under subsection (a) or (b) of this section, the Attorney Gen-
eral shall deport the alien to any of the following countries:
(1) the country from which the alien last entered the United States.
(2) the country in which is located the foreign port from which the
alien left for the United States or for a foreign territory contiguous to
the United States.
(3) a country in which the alien resided before the alien entered the
country from which the alien entered the United States.
(4) the country in which the alien was born.
(5) the country that had sovereignty over the alien’s birthplace when
the alien was born.
(6) the country in which the alien’s birthplace is located when the
alien is ordered deported.
(7) if impracticable, inadvisable, or impossible to deport the alien to
a country described by clauses (1)–(6) of this subsection, another coun-
try whose government will accept the alien into that country.
(d) DEPORTATION COUNTRY WHEN UNITED STATES IS AT WAR.—When
the United States is at war and the Attorney General decides that it is im-
practicable, inadvisable, inconvenient, or impossible to deport an alien under
subsections (a)–(c) of this section because of the war, the Attorney General
may deport the alien—
(1) to the country that is host to a government in exile of the coun-
try of which the alien is a citizen or subject if the government of the
host country will permit the alien’s entry; or
(2) if the recognized government of the country of which the alien
is a citizen or subject is not in exile, to a country, or a political or
territorial subdivision of a country, that is very near the country of
which the alien is a citizen or subject, or, with the consent of the gov-
ernment of the country of which the alien is a citizen or subject, to
another country.
(e) RESTRICTION WHEN ALIEN’S LIFE
OR FREEDOM WOULD BE
THREATENED.—(1) Notwithstanding subsections (a)–(d) of this section, the
Attorney General may not deport or return an alien to a country if the At-
torney General decides that the alien’s life or freedom would be threatened
in that country because of the alien’s race, religion, nationality, membership
in a social group, or political opinion.
171
(2) Paragraph (1) of this subsection does not apply to an alien deportable
under section 6509 of this title or if the Attorney General decides—
(A) that the alien ordered, incited, assisted, or otherwise participated
in the persecution of an individual because of the individual’s race, reli-
gion, nationality, membership in a social group, or political opinion;
(B) after the alien’s conviction of a particularly serious crime (in-
cluding any aggravated felony) has become final, that the alien is a
danger to the community of the United States;
(C) that there are serious reasons to believe that the alien committed
a serious nonpolitical crime outside the United States before the alien
arrived in the United States; or
(D) that there are reasonable grounds to believe that the alien is a
danger to the security of the United States.
§ 6538. Suspension of deportation
(a) GROUNDS FOR SUSPENSION.—On application of an alien to the Attor-
ney General, the Attorney General may suspend the deportation of the alien
and change the status of the alien under section 9103 of this title to that
of an alien lawfully admitted for permanent residence if—
(1)(A) the alien is deportable under a law of the United States, ex-
cept sections 6506–6508 of this title;
(B) for at least 7 continuous years immediately before applying, the
alien has been—
(i) physically present in the United States; and
(ii) of good moral character;
(C) the alien is of good moral character; and
(D) the Attorney General believes that deporting the alien would
cause extreme hardship to the alien or to the alien’s spouse, parent,
or child if the spouse, parent, or child is a citizen of the United States
or an alien lawfully admitted for permanent residence; or
(2)(A) the alien is deportable under any of sections 6506–6508 of
this title;
(B) for at least 10 continuous years immediately after the alien com-
mitted an act or acquired a status that is a ground for deportation,
the alien has been—
(i) physically present in the United States; and
(ii) of good moral character;
(C) the alien is of good moral character; and
(D) the Attorney General believes that deporting the alien would
cause exceptional and extremely unusual hardship to the alien or to the
alien’s spouse, parent, or child if the spouse, parent, or child is a citi-
172
zen of the United States or an alien lawfully admitted for permanent
residence.
(b) BRIEF INTERRUPTION OF PHYSICAL PRESENCE.—An alien tempo-
rarily absent from the United States is deemed to have maintained continu-
ous physical presence under subsection (a)(1)(B)(i) and (2)(B)(i) of this
section if the absence was brief, casual, and innocent and did not meaning-
fully interrupt the continuous physical presence. This subsection does not
apply to an alien removed from the United States before November 6, 1986.
(c) INTERRUPTION OF PHYSICAL PRESENCE BECAUSE OF SERVICE IN
THE ARMED FORCES.—The requirements of subsection (a)(1)(B)(i) and
(2)(B)(i) of this section do not apply to an alien who—
(1) enlisted or was inducted into the armed forces of the United
States when the alien was in the United States;
(2) served on active duty in the armed forces for at least 24 months;
and
(3) if separated from the armed forces, was separated under honor-
able conditions.
(d) NONAPPLICATION.—This section does not apply to an alien who—
(1) enters the United States as a crewmember after June 30, 1964;
(2) is admitted to the United States as a nonimmigrant under sec-
tion 2312 of this title or acquires the status of a nonimmigrant under
section 2312 after admission—
(A) to receive graduate medical education or training, regardless
of whether the alien is subject to the 2-year foreign residence re-
quirement of section 8303 of this title; or
(B) not to receive graduate medical education or training, but
who is subject to the 2-year foreign residence requirement of sec-
tion 8303 of this title and does not fulfill or receive a waiver of
that requirement; or
(3) is deportable under section 6509 of this title.
§ 6539. Voluntary departure and removal
(a) DEPARTURE BEFORE DEPORTATION PROCEEDINGS.—(1) Before a
deportation proceeding is begun against an alien, the Attorney General may
allow the alien to depart voluntarily from the United States if the alien—
(A) admits to being deportable under subchapter I of this chapter;
and
(B) departs voluntarily at the alien’s expense or is removed at the
United States Government’s expense under subsection (e) of this sec-
tion.
173
(2) Paragraph (1) of this subsection does not apply to an alien if the At-
torney General has reason to believe the alien is deportable under any of
sections 6506–6509 of this title.
(b) DEPARTURE DURING DEPORTATION PROCEEDINGS.—(1) During a
deportation proceeding against an alien, the Attorney General may allow the
alien to depart voluntarily from the United States at the alien’s expense if
the alien satisfies the Attorney General that the alien is, and for at least
5 years immediately before applying for voluntary departure under this sub-
section has been, of good moral character.
(2) Paragraph (1) of this subsection does not apply to an alien—
(A) deportable under any of sections 6506–6509 of this title, except
such an alien whose deportation may be suspended under section
6538(a)(2) of this title; or
(B) deportable because of a conviction, after November 17, 1988, of
an aggravated felony.
(c) DEPARTURE AFTER ORDER OF DEPORTATION.—After an alien is or-
dered deported, the Attorney General may allow the alien to depart volun-
tarily. An alien departing voluntarily after being ordered deported is deemed
to have been deported.
(d) REMOVAL OF ALIEN IN DISTRESS OR IN NEED OF ASSISTANCE.—
(1) If an alien falls into distress or needs public assistance from a cause
that arises after the alien enters the United States, and the alien wants to
be removed from the United States, the Attorney General may remove the
alien to—
(A) the alien’s native country;
(B) the country from which the alien came to the United States;
(C) the country of which the alien is a subject or citizen; or
(D) another country the alien designates if the government of that
country is willing to accept the alien in that country.
(2) An alien removed under paragraph (1) of this subsection may not
apply for or be granted a visa or other entry documentation or admission
to the United States without the Attorney General’s prior approval.
(e) COSTS PAYABLE BY GOVERNMENT.—The Attorney General may pay
from the appropriation ‘‘Immigration and Naturalization Service—Salaries
and Expenses’’ the costs of removing an alien from the United States
under—
(1) subsection (a) of this section if—
(A) the alien is unable to pay; and
(B) the Attorney General believes the alien’s removal is in the
best interest of the United States;
(2) subsection (c) of this section if—
174
(A) the alien is unable to pay; and
(B) payment is not otherwise provided for under this title; and
(3) subsection (d) of this section.
§ 6540. Ineligibility for discretionary relief for failure to ap-
pear
(a) DEFINITION.—In this section, ‘‘exceptional circumstances’’ has the
same meaning given that term by section 6532(a) of this title.
(b) RELIEF COVERED.—An alien is ineligible for the following relief to
the extent provided by subsections (c)–(f) of this section:
(1) suspension of deportation under section 6538 of this title.
(2) voluntary departure under section 6539(a) or (b) of this title.
(3) change of status under section 9101, 9104, or 9108 of this title.
(c) FAILURE TO APPEAR
AT DEPORTATION PROCEEDING.—An alien
against whom a final order of deportation is entered in absentia under sec-
tion 6532 of this title is ineligible for the relief specified by subsection (b)
of this section for 5 years after entry of the final order if, at the time the
notice was required to be given under section 6532(d)(3) and (4), the alien
was given oral notice, in the alien’s native language or another language the
alien understands, of the time and place of the proceeding and the con-
sequences of failing (except for exceptional circumstances) to attend.
(d) FAILURE TO APPEAR FOR VOLUNTARY DEPARTURE.—(1) Subject to
paragraph (2) of this subsection, an alien is ineligible for the relief specified
by subsection (b) of this section for 5 years after the scheduled date of de-
parture or the date of unlawful reentry if the alien—
(A) is allowed to depart voluntarily under section 6539(a) or (b) of
this title; and
(B) remains in the United States after the scheduled date of depar-
ture (except for exceptional circumstances).
(2) Paragraph (1) of this subsection applies to an alien allowed to depart
voluntarily only if, before the departure, the Attorney General has provided
written notice to the alien in English and Spanish, and oral notice, in the
alien’s native language or another language the alien understands, of the
consequences under paragraph (1) of remaining in the United States after
the scheduled date of departure (except for exceptional circumstances).
(e) FAILURE TO APPEAR FOR DEPORTATION.—(1) Subject to paragraph
(2) of this subsection, an alien against whom a final order of deportation
is entered under section 6532 of this title who fails (except for exceptional
circumstances) to appear for deportation at the time and place ordered is
ineligible for the relief specified by subsection (b) of this section for 5 years
after the scheduled date of deportation.
175
(2) Paragraph (1) of this subsection applies only if the Attorney General
has provided notice in the final order of deportation, and orally in the
alien’s native language or another language the alien understands, of the
consequences under paragraph (1) of failing (except for exceptional cir-
cumstances) to appear for deportation at the time and place ordered.
(f) FAILURE TO APPEAR FOR ASYLUM HEARING.—(1) Subject to para-
graph (2) of this subsection, an alien whose period of any authorized stay
has expired, who has filed an application for asylum, and who fails (except
for exceptional circumstances) to appear at the time and place scheduled for
the asylum hearing, is ineligible for the relief specified by subsection (b) of
this section for 5 years after the date of the asylum hearing.
(2) Paragraph (1) of this subsection applies only if the alien was given
written notice in English and Spanish, and oral notice in the alien’s native
language or another language the alien understands, of—
(A) the time and place of the asylum hearing and any change in the
time or place; and
(B) the consequences under paragraph (1) of this subsection of fail-
ing (except for exceptional circumstances) to appear.
§ 6541. Duties of private parties and costs of deportation
(a) DUTY TO CARRY OUT DEPORTATION ORDERS.—When ordered by the
Attorney General, the owner, agent, master, commanding officer, charterer,
or consignee of a vessel, aircraft, or vehicle bringing an alien to the United
States shall—
(1) take on board, guard safely, and transport to the destination
specified by the Attorney General, the alien if ordered deported; and
(2) pay the costs of deporting the alien as provided by subsection
(b) of this section.
(b) COSTS PAYABLE BY PRIVATE PARTIES.—(1) Except as provided by
paragraph (2) of this subsection, when an alien in the United States is or-
dered deported, the owner, agent, master, commanding officer, charterer, or
consignee of the vessel, aircraft, or vehicle on which the alien arrived in the
United States shall pay the costs of deporting the alien from the port of
deportation if—
(A) the alien is being deported on a ground that existed before or
at the time of entry and deportation proceedings are begun not later
than 5 years after entry; or
(B) the alien is a crewmember and deportation proceedings are
begun not later than 5 years after the last conditional permit is grant-
ed to the alien to land temporarily under section 2703 of this title.
(2) Paragraph (1) of this subsection does not apply if—
176
(A) the Attorney General decides it is not practicable to require pay-
ment; or
(B) the alien had an immigrant visa on arrival in the United States
and was inspected and admitted for permanent residence.
(c) COSTS PAYABLE BY GOVERNMENT.—When an alien in the United
States is ordered deported, the Attorney General shall pay from the appro-
priation ‘‘Immigration and Naturalization Service—Salaries and Expenses’’
the costs of—
(1) transporting the alien to the port of deportation in the United
States; and
(2) deporting the alien if—
(A) deportation proceedings are begun more than 5 years after
the alien’s entry, or, if the alien is a crewmember, more than 5
years after the last conditional permit is granted to the alien to
land temporarily; or
(B) the owner of the vessel, aircraft, or vehicle is not required
to pay the costs because of subsection (b)(2) of this section.
(d) ALIENS REQUIRING PERSONAL CARE DURING DEPORTATION.—If the
Attorney General believes that an alien being deported requires personal
care because of the alien’s mental or physical condition, the Attorney Gen-
eral shall employ a suitable individual to accompany and care for the alien
until the alien arrives at the final destination. The person required under
this section to pay the costs of deporting the alien shall pay the costs of
this service.
(e) COSTS PAYABLE BY EMPLOYERS OF CERTAIN NONIMMIGRANTS.—(1)
If the employer of an alien classified as a nonimmigrant under section
2313(a)(1) or (2) or 2315(a)(1) of this title dismisses the alien from em-
ployment before the end of the period of authorized admission, the employer
is liable for the reasonable costs of return transportation of the alien.
(2) If the employment of an alien who entered the United States as a
nonimmigrant under section 2318 or 2319 of this title ends for reasons
other than voluntary resignation, the employer whose offer of employment
provided the basis of the nonimmigrant status of the alien and the peti-
tioner are jointly and severally liable for the reasonable costs of return
transportation of the alien. The petitioner shall provide satisfactory assur-
ance to the Attorney General that the reasonable costs of that transpor-
tation will be provided.
CHAPTER 67—TEMPORARY PROTECTED STATUS
Sec.
6701.
General
6702.
Granting the status.
6703.
Designation of foreign countries.
6704.
Information and notices about status.
177
6705.
Temporary documentation and work authorization.
6706.
Registration fees.
6707.
Withdrawal of status.
6708.
Relationship to deportation.
6709.
Relationship to immigration status.
6710.
Immigration status and continuous physical presence not affected by temporary travel
outside the United States.
6711.
Exclusive remedy.
6712.
Limitation on Senate consideration of legislation adjusting status.
6713.
Annual reports.
§ 6701. General
The Attorney General may grant an alien temporary protected status in
the United States as provided by this chapter. During the period that the
status is in effect for the alien—
(1) the Attorney General may not detain the alien on the basis of
the alien’s immigration status in the United States;
(2) the Attorney General may not deport the alien;
(3) the Attorney General shall authorize the alien to work in the
United States;
(4) the alien is not residing permanently in the United States under
color of law;
(5) a State or political subdivision of a State that provides public
assistance may find the alien ineligible for the assistance;
(6) the alien may travel outside the United States with the prior con-
sent of the Attorney General; and
(7) the alien is deemed to be maintaining lawful status as a non-
immigrant for purposes of sections 9101(e)(3) and 9108 of this title.
§ 6702. Granting the status
(a) GENERAL REQUIREMENTS FOR GRANTING.—The Attorney General
may grant temporary protected status in the United States to an alien
who—
(1) is a national of, or has no nationality but last habitually resided
in, a foreign country designated, or designated in part, under section
6703 of this title;
(2) has been physically present in the United States continuously
since the effective date of the most recent designation of that country
or part of that country under section 6703 of this title;
(3) has resided in the United States continuously since a date the
Attorney General may specify;
(4) is admissible as an immigrant, except that for purposes of this
clause—
(A) sections 4104(c)(2), (d)(3), and (g)(1) and (2), 4311(a),
and 6313 of this title do not apply;
(B) the Attorney General may waive subchapter I of chapter 63
of this title (except as provided by subclause (C) of this clause)
178
for an individual alien for humanitarian purposes, to ensure family
unity, or when it is otherwise in the public interest; and
(C) the Attorney General may not waive section 6307(a)(1)–(4),
6308(a)–(c), or 6309 of this title, except as section 6307(a)(3) is
related to a single offense of simple possession of not more than
30 grams of marijuana; and
(5) registers for the temporary protected status during a registration
period of at least 180 days, to the extent and in the way the Attorney
General establishes.
(b) PROHIBITIONS
ON GRANTING.—Notwithstanding subsection (a) of
this section, the Attorney General may not grant temporary protected status
to an alien if the Attorney General finds that the alien—
(1) has been convicted of a felony or more than one misdemeanor
committed in the United States; or
(2) is described by section 6537(e)(2) of this title.
(c) BRIEF, CASUAL, AND INNOCENT ABSENCES.—(1) An alien does not
fail to maintain continuous physical presence in the United States under
subsection (a)(2) of this section because of a brief, casual, and innocent ab-
sence from the United States, whether or not authorized by the Attorney
General.
(2) An alien does not fail to maintain continuous residence in the United
States under subsection (a)(3) of this section because of a brief, casual, and
innocent absence from the United States, whether or not authorized by the
Attorney General, or because of a brief temporary trip outside the United
States required by emergency or extenuating circumstances beyond the con-
trol of the alien.
(d) STATUS PENDING REGISTRATION OR FINAL DECISION.—(1) If an
alien can establish a prima facie case of eligibility for temporary protected
status under this chapter except that the period of registration under sub-
section (a)(5) of this section has not begun, the Attorney General shall pro-
vide the alien with the benefits of the status until the alien has had a rea-
sonable opportunity to register during the first 30 days of the registration
period.
(2) If an alien establishes a prima facie case of eligibility for temporary
protected status under this chapter, the Attorney General shall provide the
alien with the benefits of the status until a final decision is made on the
alien’s eligibility.
(e) CONFIDENTIALITY.—The Attorney General shall establish procedures
to protect the confidentiality of information provided by an alien under this
chapter.
179
(f) NO AUTHORIZATION TO APPLY FOR ADMISSION OR TO BE ADMIT-
TED.—This chapter does not authorize an alien to apply for admission, or
to be admitted, to the United States to apply for temporary protected status
under this chapter.
§ 6703. Designation of foreign countries
(a) GENERAL.—After consultation with appropriate agencies, the Attor-
ney General may designate a foreign country or part of a foreign country
under this section if the Attorney General finds that—
(1) there is an armed conflict in the country that would pose a seri-
ous threat to the personal safety of nationals of that country if they
were required to return to that country or part of that country;
(2)(A) there has been an earthquake, flood, drought, epidemic, or
other environmental disaster in the country resulting in a substantial,
but temporary, disruption of living conditions in the area affected by
the disaster;
(B) the country temporarily is unable to handle returning nationals
adequately; and
(C) the government of the country officially has requested designa-
tion under this clause (2); or
(3) extraordinary and temporary conditions exist in the country that
prevent nationals from returning to that country in safety, unless the
Attorney General finds that permitting the aliens to remain temporarily
in the United States is contrary to the interest of the United States.
(b) PUBLICATION OF DESIGNATIONS.—A designation under subsection
(a) of this section is effective only if notice of the designation (including a
statement of the findings under subsection (a) and the effective date of the
designation) is published in the Federal Register. The Attorney General
shall include in the notice an estimate of the number of nationals of the
designated country who are, or within the effective period of the designation
are likely to become, eligible for temporary protected status under this chap-
ter and their immigration status in the United States.
(c) EFFECTIVE PERIOD OF DESIGNATIONS.—A designation under this
section—
(1) takes effect on the date the notice is published under subsection
(b) of this section or a later date the Attorney General specifies in the
notice; and
(2) remains in effect until terminated under subsection (d) of this
section.
(d) PERIODIC REVIEWS, EXTENSIONS, AND TERMINATIONS.—(1) The
first period of designation of a foreign country or part of a foreign country
180
is the period specified by the Attorney General. The period shall be at least
6 months but not more than 18 months.
(2) At least 60 days before the end of the first period of designation and
each extended period of designation, the Attorney General, after consulta-
tion with appropriate agencies, shall review the conditions in the designated
country or part of the country and decide whether the conditions for the
designation continue to be met.
(3)(A) If the Attorney General does not decide that the designated coun-
try or part of the country no longer meets the conditions for designation,
the designation is extended for 6 months or, in the discretion of the Attor-
ney General, for 12 or 18 months.
(B) If the Attorney General decides that the designated country or part
of the country no longer meets the conditions for designation, the Attorney
General shall terminate the designation. A termination is effective 60 days
after notice of the termination is published in the Federal Register or when
the most recent extension expires, whichever is later.
(4) The Attorney General shall publish in the Federal Register, on a
timely basis, notice of each decision under this subsection, including the
basis for the decision, and the period of any extension.
(e) INFORMATION ON PROTECTED STATUS AT TIME OF DESIGNATION.—
When the Attorney General designates a foreign country or part of a foreign
country under subsection (a) of this section, the Attorney General shall
make available to nationals of that country information on the temporary
protected status available under this chapter.
(f) ADMINISTRATIVE AND JUDICIAL REVIEW.—(1) The Attorney General
shall establish an administrative procedure to review a denial of benefits to
an alien under this section. The procedure may not prevent an alien from
asserting protection under this chapter in a deportation proceeding if the
alien demonstrates that the alien is a national of a foreign country des-
ignated, or designated in part, under this section.
(2) A designation, extension, or termination under this section is not sub-
ject to judicial review.
§ 6704. Information and notices about status
(a) INFORMATION ABOUT STATUS.—On granting temporary protected
status to an alien under this chapter, the Attorney General shall provide
the alien with information about the status.
(b) NOTICES OF AVAILABILITY AT DEPORTATION PROCEEDINGS.—The
Attorney General promptly shall notify an alien of the temporary protected
status that may be available under this chapter—
181
(1) if, when a deportation proceeding is begun against the alien, the
foreign country of which the alien is a national has been designated,
or designated in part, under section 6703 of this title; or
(2) if, during a deportation proceeding pending against the alien, the
country of which the alien is a national is designated, or designated
in part, under section 6703 of this title.
(c) FORM AND LANGUAGE.—Information and notices under this section
shall be in a form and language the alien can understand.
§ 6705. Temporary documentation and work authorization
(a) GENERAL.—On granting temporary protected status to an alien under
this chapter, the Attorney General shall provide for the issuance of tem-
porary documentation and work authorization necessary to carry out this
chapter. The work authorization shall be an ‘‘employment authorized’’ en-
dorsement or other appropriate work permit.
(b) PERIOD OF VALIDITY.—Subject to subsection (c) of this section, the
documentation and authorization are valid for the first period of designation
of the foreign country or part of the foreign country involved and any exten-
sion of that period. The Attorney General may stagger the periods of valid-
ity of the documentation and authorization to provide for an orderly renewal
of the documentation and authorization and for an orderly transition under
subsection (c) when a designation is terminated.
(c) EFFECTIVE DATE OF TERMINATIONS.—A termination of a designa-
tion under section 6703(d)(3)(B) of this title applies only to documentation
and authorization issued or renewed after—
(1) the effective date of the termination; or
(2) a later date the Attorney General decides is appropriate to pro-
vide for an orderly transition.
§ 6706. Registration fees
(a) ALLOWABLE FEES.—The Attorney General may require payment of
a reasonable fee of not more than $50 as a condition for registering an alien
under section 6702(a)(5) of this title, including providing a work authoriza-
tion. If the alien is registered because of a designation made after July 17,
1991, the Attorney General may require payment of an additional fee for
providing the work authorization.
(b) CREDITING APPROPRIATION.—All fees collected under this section
shall be credited to the appropriation to be used to carry out this chapter.
§ 6707. Withdrawal of status
The Attorney General shall withdraw temporary protected status granted
to an alien under this chapter if—
(1) the Attorney General finds that the alien was not eligible for the
status;
182
(2) except as provided by sections 6701(6) and 6702(c) of this title,
the alien has not remained continuously physically present in the Unit-
ed States from the date the alien first was granted the status; or
(3) the alien, without good cause, does not register with the Attorney
General annually, at the end of each 12-month period after the status
is granted, in the form and way the Attorney General prescribes.
§ 6708. Relationship to deportation
Under section 6538(a) of this title, the period during which temporary
protected status is in effect for an alien—
(1) is not counted as a period of physical presence in the United
States unless the Attorney General decides that extreme hardship ex-
ists; and
(2) does not cause a break in the continuity of residence before and
after the period during which the alien has that status.
§ 6709. Relationship to immigration status
(a) GENERAL.—This chapter does not authorize the Attorney General to
deny temporary protected status to an alien based on the alien’s immigra-
tion status or to require an alien, as a condition of being granted temporary
protected status, to relinquish another status the alien may have or to waive
any right under this title (except subchapter I of chapter 5, subchapters III
and IV of chapter 131, and chapters 133–137).
(b) TEMPORARY PROTECTED STATUS NOT INCONSISTENT WITH NON-
IMMIGRANT STATUS.—Granting temporary protected status under this
chapter is not inconsistent with granting nonimmigrant status under this
title.
§ 6710. Immigration status and continuous physical pres-
ence not affected by temporary travel outside the
United States
An alien granted temporary protected status under this chapter whom the
Attorney General authorizes to travel outside the United States temporarily
and who returns to the United States according to the authorization—
(1) shall be inspected and admitted in the same immigration status
the alien had at the time of departure if the alien is found not to be
excludable on a ground referred to in section 6702(a)(4)(C) of this
title; and
(2) has not failed to maintain continuous physical presence in the
United States under section 6538(a) of this title because of the depar-
ture if the absence meets the requirements of section 6538(b) of this
title.
183
§ 6711. Exclusive remedy
Except as otherwise specifically provided, this chapter is the exclusive au-
thority of the Attorney General under law to allow an alien who is or may
become otherwise deportable or who has been paroled into the United States
to remain in the United States temporarily because of the alien’s nationality
or region of foreign country of nationality.
§ 6712. Limitation on Senate consideration of legislation ad-
justing status
(a) GENERAL.—Except as provided by subsection (b) of this section, it
is not in order in the Senate to consider a bill, resolution, or amendment
that—
(1) provides for the adjustment to lawful temporary or permanent
resident alien status for an alien receiving temporary protected status
under this chapter; or
(2) has the effect of amending or limiting the application of this sec-
tion.
(b) SUPERMAJORITY REQUIREMENT.—An affirmative vote of three-fifths
of the members of the Senate chosen and sworn is required—
(1) to waive or suspend subsection (a) of this section; or
(2) to sustain an appeal of the ruling of the Chair on a point of
order raised under subsection (a) of this section.
(c) SENATE RULEMAKING POWER.—This section—
(1) is enacted as an exercise of the rulemaking power of the Senate;
(2) is deemed to be a part of the rules of the Senate on matters de-
scribed by subsection (a) of this section;
(3) supersedes other rules of the Senate only to the extent inconsist-
ent with this section; and
(4) is enacted with complete recognition of the constitutional right
of the Senate to change those rules at any time in the same way as
any other rule of the Senate.
§ 6713. Annual reports
(a) ATTORNEY GENERAL.—Not later than March 1 of each year, the At-
torney General, after consultation with appropriate agencies, shall submit to
the Committees on the Judiciary of the House of Representatives and the
Senate a report on the operation of this chapter during the prior year. The
report shall include—
(1) a listing of foreign countries and parts of foreign countries des-
ignated under section 6703 of this title;
(2) the number of nationals of each country granted temporary pro-
tected status under this chapter and their immigration status before
being granted temporary protected status; and
184
(3) an explanation of why each foreign country or part of a foreign
country was designated under section 6703 of this title and why a des-
ignation was extended or terminated.
(b) COMMITTEE REPORTS.—Not later than 180 days after receiving a re-
port under subsection (a) of this section, the Committees on the Judiciary
of the House of Representatives and the Senate shall report to the House
and Senate, respectively, on oversight findings and legislation the applicable
Committee finds appropriate.
CHAPTER 69—REGULATION OF PERSONS PROVIDING
TRANSPORTATION
Sec.
6901.
Ports of entry for aircraft and civil air navigation regulation.
6902.
Lists of passengers.
6903.
Payment contingent on landing prohibited.
6904.
Duty to prevent unauthorized landing.
6905.
Carriers transporting aliens from foreign contiguous territory or adjacent islands.
6906.
Prohibitions on bringing certain aliens to the United States.
6907.
Requirements to detain, deliver, receive, and deport aliens.
6908.
Costs of detention.
6909.
Fees for inspecting passengers.
§ 6901. Ports of entry for aircraft and civil air navigation
regulation
The Attorney General by regulation may—
(1) designate as ports of entry for aliens arriving by aircraft in the
United States any of the ports of entry designated for civil aircraft
under section 1109(b) of the Federal Aviation Act of 1958 (49 App.
U.S.C. 1509(b));
(2) require aircraft in civil air navigation to give notice of landing
or intention to land as necessary to carry out this title; and
(3) apply this title to civil air navigation to the extent the Attorney
General considers necessary.
§ 6902. Lists of passengers
(a) ARRIVING PASSENGERS.—An owner, agent, master, commanding offi-
cer, or consignee of a vessel or aircraft arriving in the United States from
a place outside the United States shall give an immigration officer at the
port of arrival a list of the passengers on the vessel or aircraft. The list
shall be prepared at the time, be in the form, and contain the information
the Attorney General prescribes by regulation as necessary to identify the
passengers and enforce the immigration laws.
(b) DEPARTING PASSENGERS.—(1) A master, commanding officer, or
agent of a vessel or aircraft taking on passengers in the United States who
are destined to a place outside the United States shall give an immigration
officer at the port a list of those passengers before departing. The list shall
be in the form, contain the information, and be accompanied by other docu-
mentation the Attorney General prescribes by regulation as necessary to
185
identify the passengers and enforce the immigration laws. The master, com-
manding officer, or agent shall state under oath that the list and accom-
panying documentation contain all of the required information.
(2) The vessel or aircraft may be cleared only after the master, command-
ing officer, or agent complies with paragraph (1) of this subsection. How-
ever, if the Attorney General decides that the vessel or aircraft is making
regular trips to ports of the United States, the Attorney General, when it
is expedient, may allow the master, commanding officer, or agent to give
the list and documentation at a later date.
(c) EXCEPTIONS.—Subsections (a) and (b) of this section do not require
that a list include—
(1) an alien crewmember; or
(2) except as required by regulations prescribed under section 6901
of this title, a passenger—
(A) arriving by air on a trip originating in foreign territory con-
tiguous to the United States; or
(B) leaving by air on a trip originating in the United States for
foreign territory contiguous to the United States.
(d) WAIVER.—The Attorney General may prescribe conditions under
which the requirements of this section may be waived.
§ 6903. Payment contingent on landing prohibited
An owner, agent, master, commanding officer, person in charge, purser,
or consignee of a vessel or aircraft may not take any consideration to be
kept or returned contingent on whether an alien is landed in or excluded
from the United States.
§ 6904. Duty to prevent unauthorized landing
(a) DUTY TO PREVENT UNAUTHORIZED LANDING.—(1) A person bring-
ing an alien to, or providing a means for an alien to travel to, the United
States (including an alien crewmember not covered by section 2704(a) of
this title) shall prevent the alien from landing in the United States at—
(A) a port of entry not designated by the Attorney General; or
(B) a time or place not designated by an immigration officer.
(2) Proof that an alien did not appear at the time and place designated
by the immigration officer is prima facie evidence that the alien landed in
the United States at a time or place not designated by the immigration offi-
cer.
(3) This subsection does not apply to a carrier that has made a contract
as provided by section 6905(b) of this title.
(b) DILIGENCE DEFENSE.—(1) An owner or operator of a rail carrier,
international bridge, or toll road that satisfies the Attorney General that the
owner or operator has acted diligently and reasonably to comply with sub-
186
section (a)(1) of this section is not liable for a penalty under section 10122
of this title for not complying with subsection (a)(1).
(2) On request of an owner or operator referred to in paragraph (1) of
this subsection, the Attorney General shall inspect a facility established, or
method used, by the owner or operator at a place of entry into the United
States to comply with subsection (a)(1) of this section. The Attorney Gen-
eral shall approve, for as long as the Attorney General prescribes, a facility
or method the Attorney General decides is satisfactory to achieve compli-
ance.
(3) Proof that an owner or operator referred to in paragraph (1) of this
subsection diligently has maintained a facility, or used a method, approved
by the Attorney General under paragraph (2) of this subsection is prima
facie evidence that the owner or operator acted diligently and reasonably to
comply with subsection (a)(1) of this section.
§ 6905. Carriers transporting aliens from foreign contiguous
territory or adjacent islands
(a) DEFINITION.—In this section, ‘‘carrier’’ includes the owner, agent,
charterer, or consignee operating a vessel or aircraft bringing an alien to
the United States, to a foreign territory contiguous to the United States,
or to an adjacent island.
(b) CARRIER CONTRACTS.—(1) The Attorney General may make a con-
tract with a carrier for—
(A) the entry and inspection of aliens coming to the United States
from a foreign territory contiguous to the United States or from an
adjacent island; and
(B) a guarantee of passage through the United States in immediate
and continuous travel of aliens destined for a foreign country.
(2) A carrier may allow an alien from a foreign territory contiguous to
the United States or from an adjacent island to land in the United States
only if the carrier has made a contract required by the Attorney General
under paragraph (1)(A) of this subsection.
(c) LANDING STATIONS.—A carrier transporting an alien passenger for
compensation from a foreign territory contiguous to the United States or
from an adjacent island to the United States—
(1) shall provide and maintain at its expense a suitable landing sta-
tion conveniently located at the place of entry in the United States; and
(2) may land any such alien passenger in the United States only if
the Attorney General approves the landing station and the maintenance
of the station.
187
§ 6906. Prohibitions on bringing certain aliens to the United
States
(a) ALIENS NOT HAVING PASSPORTS AND VISAS.—A person may not
bring to the United States (except from a foreign territory contiguous to
the United States) an alien who does not have a passport and a visa, if a
visa is required by this title or regulations prescribed under this title.
(b) ALIENS EXCLUDABLE BECAUSE OF HEALTH.—(1) An owner, agent,
master, commanding officer, charterer, or consignee of a vessel or aircraft
may not bring to the United States an alien who is excludable under section
6302 of this title.
(2) Paragraph (1) of this subsection does not apply if—
(A) the alien is a crewmember;
(B) the alien is allowed to land in the United States;
(C) the alien has an immigrant visa;
(D) the alien has a nonimmigrant visa or other documentation au-
thorizing the alien to apply for temporary admission to the United
States and applies for admission not later than 120 days after the date
the visa or documentation was granted;
(E) the alien has a reentry permit and applies for admission not
later than 120 days after the date of the alien’s last inspection and
admission;
(F)(i) the alien has a nonimmigrant visa or other documentation au-
thorizing the alien to apply for temporary admission to the United
States or a reentry permit;
(ii) the alien applies for admission more than 120 days after the date
the visa or documentation was granted or after the date of the last in-
spection and admission under the reentry permit; and
(iii) the owner, agent, master, commanding officer, charterer, or con-
signee of the vessel or aircraft satisfies the Attorney General that the
existence of the excluding condition could not have been discovered by
exercising reasonable care before the alien boarded the vessel or air-
craft; or
(G) the alien is entitled by law to exemption from the grounds of
exclusion in subchapter I of chapter 63 of this title.
(c) ALIENS EXCLUDED OR DEPORTED.—(1) An owner, agent, master,
commanding officer, person in charge, purser, or consignee of a vessel or
aircraft may not knowingly bring to the United States an alien who has
been—
(A) excluded from admission; or
(B) arrested and deported under law.
188
(2) Paragraph (1) of this subsection does not apply if the alien is a crew-
member or is entitled to reapply for admission to the United States.
§ 6907. Requirements to detain, deliver, receive, and deport
aliens
(a) GENERAL REQUIREMENTS.—An owner, agent, master, commanding
officer, person in charge, purser, or consignee of a vessel or aircraft bring-
ing an alien (except an alien crewmember) to the United States shall—
(1) detain the alien on the vessel or at the airport of arrival as re-
quired by this title or as ordered by an immigration officer;
(2) deliver the alien to an immigration officer for inspection or to
a medical officer for examination when ordered by an immigration offi-
cer;
(3) receive the alien back on the vessel or aircraft or another vessel
or aircraft owned or operated by the same interests if the alien is or-
dered deported under section 6335 of this title; and
(4) take the alien to the foreign country to which the alien is ordered
deported.
(b) ALIEN STOWAWAYS.—An owner, agent, master, commanding officer,
charterer, or consignee of a vessel or aircraft arriving in the United States
with an alien stowaway shall—
(1) not permit the stowaway to land in the United States, except—
(A) temporarily for medical treatment; or
(B) under regulations prescribed by the Attorney General for
the departure, removal, or deportation of alien stowaways from the
United States;
(2) detain the stowaway on the vessel or aircraft or at another place
designated by an immigration officer until the stowaway is inspected
by an immigration officer and, if ordered by an immigration officer,
after the inspection; and
(3) if ordered by an immigration officer, deport the stowaway on the
vessel or aircraft or on another vessel or aircraft.
§ 6908. Costs of detention
(a) GENERAL.—Except as provided by subsection (b) of this section and
section 6335(d)(2) of this title, an owner of a vessel or aircraft bringing
an alien to the United States shall pay the costs of detaining and maintain-
ing the alien while the alien is detained under section 6907(a)(1) of this
title.
(b) NONAPPLICATION.—Subsection (a) of this section does not apply if—
(1) the alien is a crewmember;
(2) the alien has an immigrant visa;
189
(3) the alien has a nonimmigrant visa or other documentation au-
thorizing the alien to apply for temporary admission to the United
States and applies for admission not later than 120 days after the date
the visa or documentation was granted;
(4) the alien has a reentry permit and applies for admission not later
than 120 days after the date of the alien’s last inspection and admis-
sion;
(5)(A) the alien has an nonimmigrant visa or other documentation
authorizing the alien to apply for temporary admission to the United
States or a reentry permit;
(B) the alien applies for admission more than 120 days after the
date the visa or documentation was granted or after the date of the
last inspection and admission under the reentry permit; and
(C) the owner of the vessel or aircraft satisfies the Attorney General
that the existence of the excluding condition could not have been dis-
covered by exercising reasonable care before the alien boarded the ves-
sel or aircraft; or
(6) the individual claims to be a national of the United States and
has a United States passport.
§ 6909. Fees for inspecting passengers
(a) FEES.—In addition to any other fee authorized by law, the Attorney
General shall charge and collect $6 for the immigration inspection of each
passenger arriving at a port of entry in the United States, or for the
preinspection of each passenger in a place outside the United States before
arrival, on a commercial vessel or aircraft. However, that fee may not be
charged and collected for—
(1) a passenger on a commercial vessel if the passenger’s journey
originated in Canada, Mexico, a territory or possession of the United
States, or an adjacent island; or
(2) a passenger traveling to a destination outside the United States
and for whom immigration inspection services are not provided.
(b) COLLECTION.—(1) A person issuing a document or ticket to an indi-
vidual for transportation on a commercial vessel or aircraft to the United
States shall—
(A) collect from the individual the fee charged under subsection (a)
of this section when the document or ticket is issued; and
(B) identify on that document or ticket the fee charged under sub-
section (a) of this section as a United States Government inspection
fee.
(2) If a document or ticket for transportation of a passenger to the
United States is issued in a foreign country and the fee charged under sub-
190
section (a) of this section is not collected when the document or ticket is
issued, the person providing the transportation shall collect the fee when the
passenger departs from the United States and give the passenger a receipt
for payment of the fee.
(3) The person collecting a fee under this section shall pay the fee to the
Attorney General before the 31st day after the end of the calendar quarter
in which the fee is collected, except that—
(A) the 4th quarter payment for fees collected from passengers on
commercial aircraft shall be paid on the 10th day before the end of
the fiscal year; and
(B) the first quarter payment shall include any collections made in
the prior quarter that were not paid with the prior payment.
(4) Fees collected under this section shall be deposited in the Treasury
in the Immigration User Fee Account established under section 317 of this
title.
(c) REGULATIONS.—Regulations prescribed by the Attorney General for
the collection of fees and payment of those fees under this section shall be
consistent with regulations prescribed by the Secretary of the Treasury for
the collection and remittance of taxes imposed by subchapter C of chapter
33 of the Internal Revenue Code of 1986 (26 U.S.C. ch. 33, subch. C), but
only to the extent the latter regulations are not inconsistent with this sec-
tion.
PART E—ADDITIONAL REQUIREMENTS AND
LIMITATIONS
CHAPTER 81—REGISTRATION AND FINGERPRINTING
Sec.
8101.
Registration and fingerprinting requirements.
8102.
Forms and oath.
8103.
Certificates of alien registration and alien registration receipt cards.
8104.
Address notification.
8105.
Confidentiality of records.
8106.
Cancellation of registration.
§ 8101. Registration and fingerprinting requirements
(a) GENERAL REQUIREMENTS.—Except as provided by subsection (c) of
this section—
(1) an alien applying for a visa shall be registered as provided by
this chapter and shall provide signed copies of a photograph of the
alien to be used as prescribed by regulation;
(2) an alien at least 14 years of age who remains in the United
States for at least 30 days and has not been registered and
fingerprinted under clause (1) of this subsection or section 30 or 31
of the Alien Registration Act, 1940, shall apply for registration and
fingerprinting within those 30 days;
191
(3) if an alien less than 14 years of age remains in the United States
for at least 30 days and has not been registered under clause (1) of
this subsection, the parent or legal guardian of the alien shall apply
for registration of the alien within those 30 days; and
(4) an alien who becomes 14 years of age in the United States shall
apply for registration and fingerprinting within 30 days after becoming
14 years of age.
(b) SPECIAL REQUIREMENTS FOR CERTAIN ALIENS.—The Attorney Gen-
eral may prescribe special regulations and forms for registering and
fingerprinting—
(1) alien crewmembers;
(2) holders of border crossing identification cards;
(3) aliens confined in institutions in the United States;
(4) aliens under order of deportation; and
(5) aliens not lawfully admitted for permanent residence.
(c) WAIVERS AND NONAPPLICATION.—(1) On a reciprocal basis, the At-
torney General may waive the fingerprinting requirement of subsection (a)
of this section for a nonimmigrant.
(2) The Secretary of State may waive subsection (a)(1) of this section
for a nonimmigrant described by section 2301 or 2302 of this title or an
alien granted a diplomatic visa on a diplomatic passport or on equivalent
documentation.
(3) Subsections (a)(2)–(4) and (b) of this section do not apply to a non-
immigrant described by section 2301 or 2302 of this title.
§ 8102. Forms and oath
(a) FORMS.—The Attorney General and Secretary of State jointly shall
prepare forms for registering aliens under section 8101(a)(1) of this title.
The Attorney General shall prepare forms for registering and fingerprinting
aliens under section 8101(a)(2)–(4) of this title. The forms shall request in-
formation on—
(1) the date and place of entry of the alien into the United States;
(2) activities and intended activities of the alien;
(3) the period of time the alien expects to remain in the United
States;
(4) any police and criminal records of the alien; and
(5) additional information as prescribed.
(b) OATH.—Information required for registration under this chapter shall
be given under oath. An individual authorized by regulations prescribed by
the Attorney General to register aliens under this chapter may administer
the oath.
192
§ 8103. Certificates of alien registration and alien registra-
tion receipt cards
(a) ISSUANCE.—An alien registered and fingerprinted under this chapter
or the Alien Registration Act, 1940, shall be issued a certificate of alien
registration or an alien registration receipt card in the form and way, and
at the time, the Attorney General prescribes by regulation.
(b) CARD TO BE CARRIED.—An alien at least 18 years of age shall carry
at all times the certificate of alien registration or alien registration receipt
card issued to the alien under this section.
§ 8104. Address notification
(a) NOTICE OF CHANGE OF ADDRESS.—Each alien in the United States
who is required to register under this chapter shall—
(1) notify the Attorney General in writing of each new address of
the alien within 10 days after the date of a change of address; and
(2) provide with the notice additional information the Attorney Gen-
eral may require by regulation.
(b) NOTICE OF NATIVES’ CURRENT ADDRESSES.—The Attorney General
may require, on 10 days’ notice, the natives of a foreign country or a class
or group of natives of a foreign country who are in the United States and
required to register under this chapter to notify the Attorney General of
their current addresses and to provide the Attorney General additional in-
formation the Attorney General may require.
(c) NOTICE FOR ALIENS LESS THAN 14 YEARS OF AGE.—A parent or
legal guardian of an alien less than 14 years of age who is required to reg-
ister shall be given the notice required by this section.
§ 8105. Confidentiality of records
A registration or fingerprinting record made under this chapter is con-
fidential and may be made available only to—
(1) law enforcement agencies of the United States Government,
States, and localities; and
(2) persons and agencies the Attorney General designates.
§ 8106. Cancellation of registration
The Secretary of State shall cancel the registration of an alien who does
not apply for an immigrant visa within one year after being notified that
a visa is available. However, the Secretary shall reinstate the registration
if the alien establishes within 2 years after notification that the failure to
apply was due to circumstances beyond the control of the alien.
CHAPTER 83—MISCELLANEOUS
Sec.
8301.
Notice of denial of visa, admission, or change of status.
8302.
Restriction on immigration of officers and employees of foreign governments and inter-
national organizations.
8303.
Ineligibility of section 2312 nonimmigrants for certain benefits.
193
8304.
Sanctions for frivolous legal actions.
§ 8301. Notice of denial of visa, admission, or change of sta-
tus
If a consular officer or an immigration officer denies an alien’s applica-
tion for a visa, admission to the United States, or change of status because
the officer finds the alien to be ineligible under section 2121(a), 4104
(c)(2), (d)(3), or (g)(1) or (2), 4311(a), or 9106 of this title or excludable
under subchapter I of chapter 63 of this title, the officer shall provide the
alien with a timely written notice of the denial. The notice shall state the
decision and list the specific provisions of law on which the denial is based.
§ 8302. Restriction on immigration of officers and employees
of foreign governments and international organi-
zations
An officer or employee of a government of a foreign country or an inter-
national organization, and an attendant, servant, employee, or member of
the immediate family of the officer or employee, may apply for and be
granted an immigrant visa and be admitted to the United States as an im-
migrant only after executing the same waiver as provided by section 9105(c)
of this title.
§ 8303. Ineligibility of section 2312 nonimmigrants for cer-
tain benefits
(a) INELIGIBILITY.—An alien admitted to the United States as a non-
immigrant under section 2312 of this title, or classified as a nonimmigrant
under section 2312 after admission, is ineligible to apply for an immigrant
visa, permanent residence, or a nonimmigrant visa under section 2313–2317
or 2325 of this title until the alien has resided and been physically present
in the foreign country of the alien’s nationality or last residence for a total
of at least 2 years after leaving the United States, if—
(1) the alien’s participation in the program for which the alien came
to the United States was financed in any part by the United States
Government or by the government of the foreign country of the alien’s
nationality or last residence;
(2) the alien, at the time of admission or classification as a non-
immigrant under section 2312 of this title, was a national or resident
of a foreign country that the Director of the United States Information
Agency (under regulations the Director prescribed) designated as clear-
ly requiring the services of individuals engaged in the alien’s field of
specialized knowledge or skill; or
(3) the alien came to the United States or was classified as a non-
immigrant under section 2312 of this title to receive graduate medical
education or training.
194
(b) WAIVERS.—The Attorney General may waive the 2-year residence re-
quirement of subsection (a) of this section if the Attorney General finds that
admitting the alien would be in the public interest, after receiving a favor-
able recommendation from—
(1) the Director—
(A) because of a request from an interested agency; or
(B) if the foreign country of the alien’s nationality or last resi-
dence provides the Director with a written statement that it does
not object to the waiver, except that this subclause does not apply
to an alien described by subsection (a)(3) of this section; or
(2) the Commissioner of Immigration and Naturalization if the Com-
missioner finds that—
(A) departure from the United States would impose exceptional
hardship on the alien’s spouse or child when the spouse or child
is a citizen of the United States or lawfully admitted for perma-
nent residence; or
(B) the alien would be subject to persecution because of race,
religion, or political opinion if the alien returned to the foreign
country of the alien’s nationality or last residence.
§ 8304. Sanctions for frivolous legal actions
(a) REGULATIONS.—The Attorney General by regulation shall—
(1) define frivolous behavior for which attorneys may be sanctioned
in a proceeding before a special inquiry officer or an appellate adminis-
trative body under this subtitle;
(2) specify the circumstances under which an administrative appeal
of a decision or ruling will be considered frivolous and summarily dis-
missed; and
(3) impose appropriate sanctions (that may include suspension and
disbarment) for frivolous behavior.
(b) NONLIMITATION OF AUTHORITY.—This section does not limit the au-
thority of the Attorney General to take action for inappropriate behavior.
PART F—CHANGE OF STATUS AND CLASSIFICATION
CHAPTER 91—CHANGE OF STATUS AND
CLASSIFICATION
Sec.
9101.
Aliens inspected and admitted or paroled into the United States.
9102.
Aliens admitted as foreign government officials and their families.
9103.
Aliens whose deportation is suspended.
9104.
Aliens entering the United States before January 1, 1972.
9105.
Aliens lawfully admitted for permanent residence.
9106.
Additional requirements for aliens changing to certain employment-based immigrant
status.
9107.
Rescission of change of status to alien lawfully admitted for permanent residence.
9108.
Change of nonimmigrant classification.
195
§ 9101. Aliens inspected and admitted or paroled into the
United States
(a) REQUIREMENTS.—Except as provided by subsections (e) and (f) of
this section, the Attorney General may change the status of an alien in-
spected and admitted or paroled into the United States to that of an alien
lawfully admitted for permanent residence if—
(1) the alien applies for the change, is eligible to receive an immi-
grant visa, and is admissible to the United States for permanent resi-
dence; and
(2) an immigrant visa is immediately available to the alien when the
alien applies for the change.
(b) RECORDATION
OF CHANGE.—On approving an application for a
change of status under subsection (a) of this section, the Attorney General
shall record the lawful admission of the alien for permanent residence as
of the date the Attorney General changes the alien’s status.
(c) REDUCTION IN NUMBER OF AUTHORIZED IMMIGRANT VISAS.—For
each alien lawfully admitted for permanent residence under this section, the
Secretary of State shall reduce by one the number of immigrant visas that
may be granted under sections 4103–4106 and 4111 of this title within the
class to which the alien is chargeable for the current fiscal year.
(d) APPLICATION TO CERTAIN SPECIAL IMMIGRANTS.—(1) In applying
this section to a special immigrant as defined by section 137(a)(12) of this
title—
(A) the alien is deemed to have been paroled into the United States;
(B) when the Attorney General is deciding on the alien’s admissibil-
ity as an immigrant—
(i) sections 4104 (c)(2), (d)(3), and (g)(2), 4311(a), 6304(a),
6313 (a)(2) and (c), and 9106 of this title do not apply;
(ii) the Attorney General may waive section 4104(g)(1) and sub-
chapter I of chapter 63 of this title (except as provided by
subclause (iii) of this clause) for an alien for humanitarian pur-
poses, to ensure family unity, or when it is otherwise in the public
interest; and
(iii) the Attorney General may not waive section 6307(a)(1)–(4),
6308(a)–(c), or 6309 of this title, except as section 6307(a)(3) is
related to a single offense of simple possession of not more than
30 grams of marijuana;
(C) the relationship between an alien and the alien’s natural parents
or prior adoptive parents is not a factor in making a waiver under
clause (B)(ii) of this paragraph; and
196
(D) this paragraph and section 137(a)(12) of this title do not au-
thorize an alien to apply for admission or be admitted to the United
States to obtain the special immigrant status as defined by section
137(a)(12).
(2) In applying this section to a special immigrant as defined by section
137(a)(13) of this title, the alien is deemed to have been paroled into the
United States.
(e) NONAPPLICATION.—Subsection (a) of this section does not apply to—
(1) an alien crewmember;
(2) an alien admitted in immediate and continuous travel without a
visa under section 2121(b)(3) of this title;
(3) an alien (except an immediate relative and a special immigrant
as defined by section 137(a)(8)–(13) of this title) who—
(A) after January 1, 1977, and before applying for a change of
status, engages in or accepts unauthorized employment;
(B) has an unlawful immigration status on the date of filing the
application for a change of status; or
(C) except through no fault of the alien or for technical reasons,
has not maintained continuously a lawful status since entering the
United States; or
(4) an alien (except an immediate relative) admitted as a non-
immigrant visitor without a visa under section 2121(c) or 2127 of this
title.
(f) ALIENS WHOSE STATUS MAY NOT BE CHANGED.—(1) The Attorney
General may not change, under subsection (a) of this section, the status
of—
(A) an alien lawfully admitted for permanent residence on a condi-
tional basis under subchapter I of chapter 45 of this title;
(B) a nonimmigrant classified under section 2309(a) of this title, ex-
cept to that of an alien lawfully admitted for permanent residence on
a conditional basis under subchapter I of chapter 45 of this title, be-
cause of the marriage of the nonimmigrant (or, if a child, the parent)
to the citizen who filed the petition under section 2309(b) of this title;
or
(C) an alien seeking an immigrant visa because of a marriage en-
tered into during the period an administrative or judicial proceeding on
the alien’s right to enter or remain in the United States is pending.
(2)(A) Paragraph (1)(C) of this subsection does not apply to a marriage
if the alien establishes by clear and convincing evidence satisfactory to the
Attorney General that—
197
(i) the marriage was entered into in good faith and under the laws
of the place where the marriage took place;
(ii) the marriage was not entered into to procure the alien’s entry
as an immigrant; and
(iii) no consideration was given, except to an attorney for assistance
in preparing a petition, for filing a petition under section 2309(b) or
4301 (a) or (b) of this title for an alien spouse or alien son or daugh-
ter.
(B) Under regulations of the Attorney General, the Attorney General
shall allow only one level of administrative appellate review for each alien
under this paragraph.
§ 9102. Aliens admitted as foreign government officials and
their families
(a) REQUIREMENTS.—An alien admitted to the United States as a non-
immigrant classified under section 2301 (1) or (2) or 2302(1)–(3) of this
title, who does not remain a member of any of those nonimmigrant classes,
may apply to the Attorney General to change the status of the alien to that
of an alien lawfully admitted for permanent residence. After consulting with
the Secretary of State, the Attorney General may change the status of the
alien if the Attorney General is satisfied that—
(1) the alien has demonstrated compelling reasons why the alien can-
not return to the country represented by the government that accred-
ited the alien or a member of the alien’s immediate family and that
changing the status of the alien is in the interest of the United States;
(2) the alien is of good moral character;
(3) the alien is admissible for permanent residence under this title;
and
(4) changing the alien’s status under this subsection would not be
contrary to the welfare, safety, or security of the United States.
(b) RECORDATION OF CHANGE AND REPORT TO CONGRESS.—If the At-
torney General changes the status of an alien under subsection (a) of this
section, the Attorney General—
(1) may record the lawful admission of the alien for permanent resi-
dence as of the date of the change; and
(2) shall submit to Congress, on the first day of the next month in
which Congress is in session—
(A) a complete and detailed report of the facts and law in the
alien’s case; and
(B) the Attorney General’s reasons for the change.
(c) CONGRESSIONAL DISAPPROVAL OF CHANGE.—If before the end of the
session of Congress after the session in which the report is submitted, either
198
House of Congress passes a resolution disapproving the change of the
alien’s status, the Attorney General shall require the alien to leave the Unit-
ed States as provided by law.
(d) REDUCTION IN NUMBER OF IMMIGRANT VISAS.—(1) For each alien
lawfully admitted for permanent residence under this section, the Secretary
of State shall reduce by one the number of immigrant visas for the foreign
country to which the alien is chargeable under section 4112 of this title for
the current fiscal year or the next fiscal year in which a visa is available
if—
(A) neither House of Congress passes a resolution under subsection
(c) of this section disapproving the change of the alien’s status; and
(B) the alien was classifiable as an immigrant subject to the numeri-
cal limitations of sections 4102–4106 and 4111 of this title when the
alien entered the United States.
(2) The Secretary may not reduce the numerical limitations for the for-
eign country under this section by more than 50 percent in a fiscal year.
(e) NUMERICAL LIMITATION.—The Attorney General may admit as aliens
lawfully admitted for permanent residence under this section not more than
50 aliens in a fiscal year.
§ 9103. Aliens whose deportation is suspended
The Attorney General shall—
(1) change the status of an alien whose deportation the Attorney
General suspends under section 6538(a) of this title to that of an alien
lawfully admitted for permanent residence; and
(2) record the lawful admission of the alien for permanent residence
as of the date the Attorney General suspends the deportation.
§ 9104. Aliens entering the United States before January 1,
1972
(a) REQUIREMENTS.—On approval of an application of an alien, the At-
torney General may change the status of the alien to that of an alien law-
fully admitted for permanent residence if—
(1) a record of the lawful admission of the alien for permanent resi-
dence is not available; and
(2) the alien satisfies the Attorney General that the alien—
(A) entered the United States before January 1, 1972, and has
resided in the United States continuously since the alien’s entry;
(B) is of good moral character;
(C) is eligible to be naturalized as a citizen of the United
States; and
(D) is not excludable under—
(i) section 6309 of this title; or
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(ii) a provision of subchapter I of chapter 63 of this title
related to criminals, immoral individuals, violators of narcotic
laws, smugglers of aliens, or aliens associated with undemo-
cratic ideals.
(b) RECORDATION OF CHANGE.—If the Attorney General changes the
status of an alien under subsection (a) of this section, the Attorney General
shall record the lawful admission of the alien for permanent residence as
of the date—
(1) the alien entered the United States if the alien entered before
July 1, 1924; or
(2) the Attorney General approves the alien’s application for a
change of status under this section.
(c) PHOTOGRAPHS.—An alien applying for a change of status under this
section must provide the Attorney General with 3 identical photographs of
the alien.
(d) NONAPPLICATION OF NUMERICAL LIMITATIONS.—The numerical lim-
itations of sections 4102 and 4111 of this title do not apply to an alien
whose status is changed under this section.
§ 9105. Aliens lawfully admitted for permanent residence
(a) CHANGE TO NONIMMIGRANT STATUS.—Except as provided by sub-
section (c) of this section, the Attorney General shall change the status of
an alien lawfully admitted for permanent residence to that of a non-
immigrant classified under section 2301, 2302, or 2306(b)(1) of this title
if at the time of entry or after the alien enters the United States the alien
engages in an occupation that would qualify the alien to be classified as a
nonimmigrant under section 2301, 2302, or 2306(b)(1) if the alien were
seeking to be admitted to the United States.
(b) RECORD OF ADMISSION FOR PERMANENT RESIDENCE CANCELED.—
The Attorney General shall cancel the record of the admission of the alien
for lawful permanent residence as of the date the Attorney General changes
the alien’s status.
(c) NONAPPLICATION.—This section does not apply to an alien who—
(1) requests the Attorney General not to change the alien’s status
under this section; and
(2) files with the Attorney General a written waiver of the rights,
privileges, exemptions, and immunities that the alien otherwise would
be entitled to under a law or executive order because the alien is engag-
ing in an occupation that qualifies the alien to be classified as a non-
immigrant under section 2301, 2302, or 2306(b)(1) of this title.
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§ 9106. Additional requirements for aliens changing to cer-
tain employment-based immigrant status
Section 4104(g) of this title applies to aliens applying for a change of
status to that of an immigrant under section 4104 (c) or (d) of this title.
§ 9107. Rescission of change of status to alien lawfully ad-
mitted for permanent residence
(a) GENERAL.—(1) If, within 5 years after the Attorney General changes
the status of an alien under any provision of law (except under section 9103
of this title) to that of an alien lawfully admitted for permanent residence,
the Attorney General is satisfied that the alien was not eligible for the
change, the Attorney General shall rescind—
(A) the change of the alien’s status; and
(B) the suspension of the alien’s deportation if the Attorney General
suspended the deportation.
(2) When the Attorney General rescinds a change under paragraph (1)
of this subsection, the alien becomes subject to this title as if the Attorney
General had not changed the alien’s status.
(b) ALIEN WHOSE DEPORTATION IS SUSPENDED.—(1) If, within 5 years
after the Attorney General changes the status of an alien under section
9103 of this title to that of an alien lawfully admitted for permanent resi-
dence, the Attorney General is satisfied that the alien was not eligible for
the change, the Attorney General shall submit to Congress, on the first or
15th day of the next month in which Congress is in session, a complete and
detailed report of the facts and law in the alien’s case.
(2) If, before the end of the session of Congress after the session in which
the report is submitted, Congress passes a concurrent resolution withdraw-
ing the suspension of the alien’s deportation, the alien becomes subject to
this title as if the Attorney General had not changed the alien’s status.
§ 9108. Change of nonimmigrant classification
(a) PREREQUISITES.—Except as provided by subsection (b) of this sec-
tion, the Attorney General may change the classification of an alien from
one nonimmigrant classification to another nonimmigrant classification
under conditions prescribed by the Attorney General if the alien—
(1) is lawfully admitted to the United States as a nonimmigrant; and
(2) continues to qualify as a nonimmigrant.
(b) NONAPPLICATION.—The Attorney General may not change the classi-
fication of an alien under subsection (a) of this section if the alien—
(1) is admitted to the United States for passage through the United
States in immediate and continuous travel to a foreign country;
(2) is classified as a nonimmigrant described by section 2304, 2305,
or 2309 of this title;
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(3) is classified as a nonimmigrant described by section 2312(a) of
this title and came to the United States or acquired the classification
to receive graduate medical education or training;
(4) except an alien referred to in clause (3) of this subsection, is
classified as a nonimmigrant described by section 2312(a) of this title
and is subject to, and has not received a waiver of, the 2-year foreign
residence requirement of section 8303(a) of this title, unless the alien
applies to have the alien’s classification changed from a classification
as a nonimmigrant described by section 2312(a) to a classification as
a nonimmigrant described by section 2301 or 2302 of this title; or
(5) is admitted as a nonimmigrant visitor without a visa under sec-
tion 2121(c) or 2127 of this title.
CHAPTER 
93—CHANGE 
OF 
STATUS 
FOR 
CERTAIN
ALIENS WHO ENTERED THE UNITED STATES BEFORE
1982
Sec.
9301.
Numerical limitations and admissions.
9302.
Change of status to alien lawfully admitted for temporary residence.
9303.
Applications for change of status to alien lawfully admitted for temporary residence.
9304.
Change of status from temporary residence to permanent residence.
9305.
Medical examination.
9306.
Nonapplication and waiver of certain provisions of law.
9307.
Fees.
9308.
Confidentiality of information.
9309.
Temporary stay of deportation.
9310.
Temporary ineligibility to receive certain assistance.
9311.
Unfavorable ending of temporary residence status.
9312.
Administrative and judicial review.
9313.
Administrative.
§ 9301. Numerical limitations and admissions
(a) NUMERICAL LIMITATIONS.—The numerical limitations of sections
4102 and 4111 of this title do not apply to a change of status of an alien
to that of an alien lawfully admitted for permanent residence under this
chapter.
(b) ADMISSIONS.—This chapter does not authorize an alien to apply for
admission to, or be admitted to, the United States so that the alien may
apply for a change of status under section 9302 of this title.
§ 9302. Change of status to alien lawfully admitted for tem-
porary residence
(a) REQUIREMENTS.—The Attorney General shall change the status of an
alien to that of an alien lawfully admitted for temporary residence if the
alien meets the following requirements:
(1) The alien applied for the change as provided by section 9303 of
this title after May 4, 1987, and before May 5, 1988.
(2) The alien entered the United States before January 1, 1982.
202
(3) The alien resided continuously in the United States in an unlaw-
ful status from January 1, 1982, through the date the application for
the change was filed under this section.
(4) If the alien—
(A) entered the United States as a nonimmigrant before Janu-
ary 1, 1982, the alien’s period of authorized stay as a non-
immigrant expired before January 1, 1982, or the United States
Government by January 1, 1982, knew of the unlawful status of
the alien; or
(B) was a nonimmigrant exchange alien described by section
2312(a) of this title, the alien was not subject to the 2-year for-
eign residence requirement of section 8303(a) of this title, fulfilled
the requirement, or received a waiver.
(5) The alien has been physically present continuously in the United
States, except for any brief, casual, and innocent absence, since No-
vember 6, 1986.
(6) The alien is admissible to the United States as an immigrant,
except as provided by sections 9305 and 9306 of this title.
(7) The alien has not been convicted of a felony or of not more than
2 misdemeanors committed in the United States.
(8) The alien has not assisted in the persecution of a person because
of race, religion, nationality, membership in a social group, or political
opinion.
(9) The alien is registered or registering under the Military Selective
Service Act (50 App. U.S.C. 451 et seq.) if the Act requires the alien
to register.
(b) AUTHORIZED TRAVEL.—During the time an alien is an alien lawfully
admitted for temporary residence under subsection (a) of this section, the
Attorney General shall allow the alien to return to the United States after—
(1) any brief and casual trip outside the United States that reflects
the alien’s intent to have the alien’s status changed under section 9304
of this title to that of an alien lawfully admitted for permanent resi-
dence; and
(2) any brief temporary trip outside the United States because of a
family obligation involving the illness or death of a close relative or an-
other family need.
(c) AUTHORIZED EMPLOYMENT.—During the time an alien is an alien
lawfully admitted for temporary residence under subsection (a) of this sec-
tion, the Attorney General shall grant the alien authorization to work in the
United States and provide to the alien an ‘‘employment authorized’’ en-
dorsement or other appropriate work permit.