the period specified by section 2325(c) of this title or to perform serv-
ices described in section 2314, 2318, or 2319 of this title) that requires
theoretical and practical application of a body of highly specialized
knowledge and a bachelor’s, or higher, degree in the specific specialty,
or its equivalent, as a minimum for entry into the occupation in the
United States;
(B) the alien—
(i) is fully licensed by a State to practice the occupation if a
license is required to practice that occupation;
(ii) has completed the degree described in this subclause (A) of
this paragraph for that occupation; or
(iii) has experience in the specialty equivalent to the completion
of that degree and recognition of expertise in the specialty through
progressively more responsible positions related to the specialty;
(C) the alien meets the requirements of subsection (d) of this sec-
tion; and
(D) the Secretary of Labor has certified to the Attorney General
that the employer intending to employ the alien has filed with the Sec-
retary an application under section 2351 of this title;
(2)(A) the alien is coming to the United States temporarily to be em-
ployed as a fashion model and demonstrates distinguished merit and
ability; and
(B) the Secretary of Labor has certified to the Attorney General that
the employer intending to employ the alien has filed with the Secretary
an application under section 2351 of this title; or
(3) the alien is the spouse or child of an alien described in clause
(1) or (2) of this subsection if accompanying or following to join the
alien.
(b) NUMERICAL AND TIME LIMITATIONS.—(1) The total number of aliens
who may be issued visas or provided status as nonimmigrants classified
under subsection (a)(1) and (2) of this section during a fiscal year is
65,000. Those aliens shall be classified as nonimmigrants under that sub-
section in the order in which petitions are filed for that classification.
(2) An alien classified as a nonimmigrant under subsection (a)(1) or (2)
of this section may be admitted to the United States for not more than 6
years.
(c) EMPLOYER PETITIONS.—(1) An employer intending to bring to the
United States an alien described in subsection (a)(1) or (2) of this section
must file a petition with the Attorney General. The petition must be in the
form and contain the information the Attorney General prescribes. Before
approving a petition, the Attorney General shall consult with the heads of
appropriate federal departments, agencies, and instrumentalities. The Attor-
ney General must approve the petition before a visa may be issued to the
alien. Approval of the petition does not establish by itself that the alien is
a nonimmigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) LIMITATIONS ON ADMISSION OF MEDICAL SCHOOL GRADUATES.—An
alien who is a graduate of a medical school and is coming to the United
States to perform services as a member of the medical profession may be
admitted as a nonimmigrant classified under subsection (a)(1) of this sec-
tion only if the alien—
(1) is coming to the United States at the invitation of a public or
nonprofit private educational or research institution or agency in the
United States to teach or conduct research, or both, at or for the insti-
tution or agency; or
(2)(A) has passed the licensing examination administered by the
Federation of State Medical Boards of the United States or an exam-
ination the Secretary of Health and Human Services decides is equiva-
lent; and
(B)(i) is competent in oral and written English; or
(ii) is a graduate of a medical school that is accredited by a body
approved by the Secretary of Education (regardless of whether the
school is in the United States).
(e) INTENTION TO ABANDON RESIDENCE IN A FOREIGN COUNTRY.—For
purposes of obtaining a visa or acquiring or maintaining the status of a
nonimmigrant classified under subsection (a)(1) or (2) of this section, the
fact that an alien is the beneficiary of an application for a preference status
filed under subchapter I of chapter 43 of this title or otherwise has sought
permanent residence in the United States is not evidence of an intention
to abandon a residence in a foreign country if the alien has acquired a
change of status under section 9108 of this title to a classification as such
a nonimmigrant before the alien’s most recent departure from the United
States.
§ 2314. Temporary and seasonal agricultural employees
(a) GENERAL.—An alien is classifiable as a nonimmigrant under this sec-
tion if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning; and
(B) is coming to the United States temporarily to perform temporary
or seasonal agricultural labor or services as defined by the Secretary
of Labor by regulation, including agricultural labor as defined in sec-
tion 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C.
3121(g)) and agriculture as defined in section 3 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203); or
(2) is the spouse or child of an alien described in clause (1) of this
subsection if accompanying or following to join the alien.
(b) EMPLOYER PETITIONS.—(1) An employer intending to bring to the
United States an alien described in subsection (a)(1) of this section must
file a petition with the Attorney General. The petition must be in the form
and contain the information the Attorney General prescribes. Before approv-
ing a petition, the Attorney General shall consult with the heads of appro-
priate federal departments, agencies, and instrumentalities, including the
Secretaries of Labor and Agriculture. The Attorney General may approve
the petition only after the petitioner has applied to the Secretary of Labor
for a certification under section 2502 of this title. The Attorney General
must approve the petition before a visa may be issued to the alien. Approval
of the petition does not establish by itself that the alien is a nonimmigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
§ 2315. Aliens performing labor or services for which United
States workers are unavailable
(a) GENERAL.—An alien is classifiable as a nonimmigrant under this sec-
tion if the alien—
(1)(A) is not a graduate of a medical school coming to the United
States to perform services as a member of the medical profession;
(B) has a residence in a foreign country that the alien has no inten-
tion of abandoning; and
(C) is coming to the United States temporarily to perform temporary
labor or services (except labor or services described in section 2314 of
this title) for which unemployed workers able to perform the labor or
services are unavailable in the United States; or
(2) is the spouse or child of an alien described in clause (1) of this
subsection if accompanying or following to join the alien.
(b) NUMERICAL LIMITATIONS.—The total number of aliens who may be
issued visas or provided status as nonimmigrants classified under subsection
(a)(1) of this section during a fiscal year is 66,000. Those aliens shall be
classified as nonimmigrants under that subsection in the order in which pe-
titions are filed for that classification.
(c) EMPLOYER PETITIONS.—(1) An employer intending to bring to the
United States an alien described in subsection (a)(1) of this section must
file a petition with the Attorney General. The petition must be in the form
and contain the information the Attorney General prescribes. Before approv-
ing a petition, the Attorney General shall consult with the heads of appro-
priate federal departments, agencies, and instrumentalities. The Attorney
General must approve the petition before a visa may be issued to the alien.
Approval of the petition does not establish by itself that the alien is a non-
immigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) EMPLOYMENT IN THE VIRGIN ISLANDS.—The Attorney General may
approve a petition filed for an alien described in subsection (a)(1) of this
section for employment in the Virgin Islands only—
(1) if the alien is to be employed as an entertainer or athlete; and
(2) for not more than 45 days.
§ 2316. Aliens receiving training
(a) GENERAL.—An alien is classifiable as a nonimmigrant under this sec-
tion if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning; and
(B) is coming to the United States temporarily to receive training
(except graduate medical education or training) in a training program
that is not designed primarily to provide productive employment; or
(2) is the spouse or child of an alien described in clause (1) of this
section if accompanying or following to join the alien.
(b) EMPLOYER PETITIONS.—(1) An employer intending to bring to the
United States an alien described in subsection (a)(1) of this section must
file a petition with the Attorney General. The petition must be in the form
and contain the information the Attorney General prescribes. Before approv-
ing a petition, the Attorney General shall consult with the heads of appro-
priate federal departments, agencies, and instrumentalities. The Attorney
General must approve the petition before a visa may be issued to the alien.
Approval of the petition does not establish by itself that the alien is a non-
immigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
§ 2317. Intra-company transferees
(a) GENERAL.—(1) An alien is classifiable as a nonimmigrant under this
section if the alien—
(A) within 3 years before applying for admission, has been employed
continuously for at least one year by a corporation or other legal entity
or an affiliate or subsidiary of the entity and is coming to the United
States temporarily to continue employment with the same employer or
an affiliate or subsidiary of the entity—
(i) in an executive or managerial capacity; or
(ii) that involves a specialized knowledge of the product of the
entity, affiliate, or subsidiary and its application in international
markets or an advanced level of knowledge of processes and proce-
dures of the entity, affiliate, or subsidiary and the alien has that
knowledge; or
(B) is the spouse or child of an alien described in clause (A) of this
paragraph if accompanying or following to join the alien.
(2) The period of admission for an alien classified as a nonimmigrant
under—
(A) paragraph (1)(A)(i) of this subsection may be not more than 7
years; and
(B) paragraph (1)(A)(ii) of this subsection may be not more than
5 years.
(3) In applying paragraph (1) of this subsection, a partnership or similar
organization organized outside the United States to provide accounting serv-
ices is deemed to be an affiliate of a partnership organized in the United
States to provide accounting services if—
(A) the partnership or similar organization organized outside the
United States markets its accounting services under an internationally
recognized name under an agreement with a worldwide coordinating or-
ganization owned and controlled by the member accounting firms of
which the United States partnership is also a member; and
(B) the United States partnership markets its accounting services
under the same internationally recognized name under an agreement
with the worldwide coordinating organization.
(b) EMPLOYER PETITIONS.—(1) An employer intending to bring to the
United States an alien described in subsection (a)(1)(A) of this section must
file a petition with the Attorney General. The petition must be in the form
and contain the information the Attorney General prescribes. Before approv-
ing a petition, the Attorney General shall consult with the heads of appro-
priate federal departments, agencies, and instrumentalities. The Attorney
General must approve the petition before a visa may be issued to the alien.
Approval of the petition does not establish by itself that the alien is a non-
immigrant.
(2) The Attorney General shall establish a procedure under which an em-
ployer that meets the requirements the Attorney General prescribes may file
a petition for more than one alien described in subsection (a)(1)(A) of this
section instead of filing individual petitions under paragraph (1) of this sub-
section for those aliens. The procedure shall allow the expedited processing
of visas for the admission of aliens under such a petition.
(3) The Attorney General shall provide for a procedure for reviewing and
acting on petitions filed under this subsection not later than 30 days after
the date a completed petition is filed.
(4) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(c) INTENTION TO ABANDON RESIDENCE IN A FOREIGN COUNTRY.—For
purposes of obtaining a visa or acquiring or maintaining the status of a
nonimmigrant classified under subsection (a)(1)(A) of this section, the fact
that an alien is the beneficiary of an application for a preference status filed
under subchapter I of chapter 43 of this title or otherwise has sought per-
manent residence in the United States is not evidence of an intention to
abandon a residence in a foreign country if the alien has acquired a change
of status under section 9108 of this title to a classification as such a non-
immigrant before the alien’s most recent departure from the United States.
§ 2318. Aliens with extraordinary ability or with distinction
in the arts, motion pictures, or television
(a) GENERAL.—An alien is classifiable as a nonimmigrant under this sec-
tion if the alien—
(1)(A)(i) has extraordinary ability in the sciences, education, busi-
ness, or athletics as demonstrated by sustained national or inter-
national acclaim;
(ii) is distinguished in the arts as demonstrated by sustained na-
tional or international acclaim; or
(iii) with regard to motion picture and television productions has
demonstrated a record of extraordinary achievement and whose achieve-
ments have been recognized in the field through extensive documenta-
tion; and
(B) is coming to the United States to continue work in the area of
extraordinary ability, distinction, or extraordinary achievement;
(2) has a residence in a foreign country that the alien has no inten-
tion of abandoning and—
(A) is coming to the United States temporarily and only to ac-
company and assist in the artistic or athletic performance for any
specific event by an alien described in clause (1) of this subsection;
(B) is an integral part of the actual performance; and
(C)(i) has critical skills and experience with the alien described
in clause (1) of this section that are not general in nature and
that cannot be performed by other individuals; or
(ii) for a motion picture or television production, has skills and
experience with the alien described in clause (1) of this subsection
that are not general in nature and are critical because of a long-
standing working relationship or, for a specific production, because
significant production (including pre-production and post-produc-
tion work) will take place both inside and outside the United
States and the continuing participation of the alien described in
this clause is essential to the successful completion of the produc-
tion; or
(3) is the spouse or child of an alien described in clause (1) or (2)
of this subsection if accompanying or following to join the alien.
(b) PERIOD OF ADMISSION.—An alien classified as a nonimmigrant under
this section may be admitted for the period the Attorney General specifies
to provide for any event for which the nonimmigrant is admitted.
(c) EMPLOYER PETITIONS.—(1) An employer intending to bring to the
United States an alien described in subsection (a) (1) or (2) of this section
must file a petition with the Attorney General. The petition must be in the
form and contain the information the Attorney General prescribes. Before
approving a petition, the Attorney General shall consult with the heads of
appropriate federal departments, agencies, and instrumentalities. The Attor-
ney General must approve the petition before a visa may be issued to the
alien. Approval of the petition does not establish by itself that the alien is
a nonimmigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) CONSULTATION REQUIREMENTS.—The Attorney General may approve
a petition under subsection (c) of this section only after the petitioner satis-
fies the consultation requirements of section 2352 of this title.
§ 2319. Athletes and entertainers
(a) GENERAL.—An alien is classifiable as a nonimmigrant under this sec-
tion if the alien—
(1) has a residence in a foreign country that the alien has no inten-
tion of abandoning who—
(A)(i) performs as an athlete, individually or as a member of
a group or team, at an internationally recognized level of perform-
ance; and
(ii) is coming to the United States temporarily and only to per-
form as an athlete for a specific athletic competition;
(B)(i) performs with, or is an integral and essential part of the
performance of, an entertainment group that, except as provided
in section 2353(b)(1)(A) of this title, has been recognized inter-
nationally as being outstanding in the discipline for a sustained
and substantial period of time;
(ii) if a performer or entertainer, except as provided in section
2353(b) (1)(B) and (2) of this title, has had a sustained and sub-
stantial relationship with that group (ordinarily for at least one
year) and performs functions integral to the performance of the
group; and
(iii) is coming to the United States temporarily and only to per-
form as such a performer or entertainer or as an integral and es-
sential part of a performance;
(C)(i) performs as an artist or entertainer, individually or as a
member of a group, or is an integral part of the performance of
that group; and
(ii) is coming to the United States temporarily and only to per-
form as such an artist or entertainer or with that group under a
reciprocal exchange program between an organization in the Unit-
ed States and an organization in a foreign country that provides
for the temporary exchange of artists and entertainers; or
(D)(i) performs as an artist or entertainer, individually or as a
member of a group, or is an integral part of the performance of
that group; and
(ii) is coming to the United States temporarily and only to per-
form, teach, or coach as such an artist or entertainer or with that
group under a commercial or non-commercial program that is cul-
turally unique; or
(2) is the spouse or child of an alien described in clause (1) of this
section if accompanying or following to join the alien.
(b) PERIOD OF ADMISSION.—(1) Except as provided in paragraph (2) of
this subsection, an alien classified as a nonimmigrant under this section
may be admitted for the period the Attorney General specifies in order to
provide for any competition, event, or performance for which the non-
immigrant is admitted.
(2) An alien classified as a nonimmigrant under this section and admitted
as an individual athlete may be admitted for an initial period of not more
than 5 years during which the nonimmigrant will perform as an athlete. The
Attorney General may extend that period for an additional period of not
more than 5 years.
(c) PETITIONS.—(1) Any person may file a petition with the Attorney
General for an alien described in subsection (a) of this section.
(2) An employer intending to bring to the United States an alien de-
scribed in subsection (a)(1) (A) or (B) of this section must file a petition
with the Attorney General. The petition filed under this paragraph must be
in the form and contain the information the Attorney General prescribes.
Before approving a petition, the Attorney General shall consult with the
heads of appropriate federal departments, agencies, and instrumentalities.
The Attorney General must approve the petition before a visa may be issued
to the alien. Approval of the petition does not establish by itself that the
alien is a nonimmigrant.
(3) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) CONSULTATION REQUIREMENTS.—The Attorney General may approve
a petition under subsection (c) of this section only after the petitioner satis-
fies the consultation requirements of section 2353 of this title.
§ 2320. Participants in international exchange programs
An alien is classifiable as a nonimmigrant under this section if the
alien—
(1) has a residence in a foreign country that the alien has no inten-
tion of abandoning;
(2) is coming to the United States for a period of not more than
15 months to participate in an international cultural exchange program
approved by the Attorney General that provides practical training, em-
ployment, and the sharing of history, culture, and traditions of the for-
eign country of the alien’s nationality; and
(3) will be employed for the same wages and under the same working
conditions as United States workers.
§ 2321. Aliens in religious occupations
An alien is classifiable as a nonimmigrant under this section if the
alien—
(1)(A) for the 2 years immediately before the alien’s application for
admission, has been a member of a religious denomination that has a
bona fide nonprofit religious organization in the United States; and
(B) is coming to the United States for a period of not more than
5 years to perform work described in section 133(a)(3)(A)(ii) (I), (II),
or (III) of this title; or
(2) is the spouse or child of an alien described in clause (1) of this
section if accompanying or following to join the alien.
§ 2322. Participants in cooperative research, development,
and coproduction projects
(a) GENERAL.—On a reciprocal basis, an alien is classifiable as a non-
immigrant under this section if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning; and
(B) is coming to the United States for not more than 10 years to
provide services of an exceptional nature requiring merit and ability re-
lated to a cooperative research and development project or a coproduc-
tion project provided under a government-to-government agreement
carried out by the Secretary of Defense; or
(2) is the spouse or child of an alien described in clause (1) of this
section if accompanying or following to join the alien.
(b) NUMERICAL LIMITATION.—Not more than 100 aliens classified as
nonimmigrants under this section may be admitted as, or granted the status
of, a nonimmigrant classified under this section at any time.
§ 2323. Participants in special education programs
(a) GENERAL.—An alien is classifiable as a nonimmigrant under this sec-
tion if the alien—
(1)(A) has a residence in a foreign country that the alien has no in-
tention of abandoning; and
(B) is coming to the United States for not more than 18 months
to participate in a special education training program that provides
practical training and experience in educating children with physical,
mental, or emotional disabilities; or
(2) is the spouse or child of an alien described in clause (1) of this
section if accompanying or following to join the alien.
(b) NUMERICAL LIMITATION.—Not more than 50 aliens classified as non-
immigrants under this section may be admitted as, or granted the status
of, a nonimmigrant classified under this section in a fiscal year.
§ 2324. Relatives of special immigrants
An alien is classifiable as a nonimmigrant under this section if the alien
is—
(1) the parent of an alien who is a special immigrant as defined in
section 133(a)(9) of this title, but only when the alien is a child; or
(2) a child of—
(A) a parent described in clause (1) of this section; or
(B) an alien who is a special immigrant as defined in section
133(a)(10) or (11) of this title.
§ 2325. Registered nurses
(a) DEFINITION.—In this section, ‘‘facility’’ includes an employer that
employs registered nurses in a home setting.
(b) GENERAL.—An alien is classifiable as a nonimmigrant under this sec-
tion if the alien—
(1)(A) is coming to the United States temporarily to perform serv-
ices as a registered nurse;
(B) has obtained a full and unrestricted license to practice profes-
sional nursing in the foreign country in which the alien obtained nurs-
ing education or has received nursing education in the United States
or Canada;
(C) has passed an appropriate examination (recognized in regula-
tions prescribed in consultation with the Secretary of Health and
Human Services) or has a full and unrestricted license under state law
to practice professional nursing in the State of intended employment;
(D) is fully qualified and eligible under the laws (including tem-
porary licensing requirements authorizing the nurse to be employed)
governing the place of intended employment to engage in the practice
of professional nursing as a registered nurse immediately on admission
to the United States and is authorized under those laws to be employed
by the facility; and
(E) is one for whom the Secretary of Labor has certified to the At-
torney General that each facility (including the petitioner under sub-
section (c)(1) of this section and each worksite, except a private house-
hold worksite, that is not the alien’s employer or controlled by the em-
ployer) at which the alien will perform the services has an attestation
on file and in effect under section 2902 of this title; or
(2) is the spouse or child of an alien described in clause (1) of this
subsection if accompanying or following to join the alien.
(c) EMPLOYER PETITIONS.—(1) An employer intending to bring to the
United States an alien described in subsection (b)(1) of this section must
file a petition with the Attorney General. The Attorney General may ap-
prove a petition filed under this section only if the petition is filed during
the period from September 1, 1990, through August 31, 1995. The petition
must be in the form and contain the information the Attorney General pre-
scribes. Before approving a petition, the Attorney General shall consult with
the heads of appropriate federal departments, agencies, and instrumental-
ities. The Attorney General must approve the petition before a visa may be
issued to the alien. Approval of a petition does not establish by itself that
the alien is a nonimmigrant.
(2) If a petition is filed and denied under this subsection, the Attorney
General shall notify the petitioner of the decision and the reasons for the
denial and the way in which the petitioner may appeal the decision.
(d) PERIOD OF ADMISSION.—An alien classified as a nonimmigrant under
this section may be admitted for an initial period of not more than 3 years.
The initial period may be extended for one or more periods, but the total
period of admission may not be more than 5 years (or 6 years if the Attor-
ney General decides there are extraordinary circumstances).
(e) INTENTION TO ABANDON RESIDENCE IN A FOREIGN COUNTRY.—For
purposes of obtaining a visa or acquiring or maintaining the status of a
nonimmigrant classified under this section, the fact that an alien is the ben-
eficiary of an application for a preference status filed under subchapter I
of chapter 43 of this title or otherwise has sought permanent residence in
the United States is not evidence of an intention to abandon a residence
in a foreign country if the alien has acquired a change of status under sec-
tion 9108 of this title to a classification as such a nonimmigrant before the
alien’s most recent departure from the United States.
(f) EXTENSION OF STAY FOR CERTAIN NURSES.—(1) The authorized pe-
riod of stay in the United States of a nonimmigrant described in paragraph
(2) of this subsection is extended through September 30, 1997.
(2) A nonimmigrant described in this paragraph is a nonimmigrant—
(A) who entered the United States as a nonimmigrant classified
under subsection (b)(1) of this section;
(B) who was in the United States after August 31, 1995, and on
September 30, 1996; and
(C) whose period of authorized stay has expired or would expire be-
fore September 30, 1997, but for this subsection.
(3) This subsection does not extend the validity of any visa issued to a
nonimmigrant described in subsection (b)(1) of this section or to authorize
the re-entry of any individual outside the United States on September 30,
1996.
(4) A nonimmigrant whose authorized period of stay is extended under
this subsection is not eligible to change employers in accordance with section
214.2(h)(2)(i)(D) of title 8, Code of Federal Regulations, as in effect on
September 29, 1996.
(5) A nonimmigrant whose authorized period of stay is extended under
this subsection, and the spouse and child of such an immigrant, are consid-
ered to have continued to maintain lawful status as a nonimmigrant through
September 30, 1997.
§ 2326. Aliens with information about criminal or terrorist
organizations
(a) GENERAL.—An alien is classifiable as a nonimmigrant under this sec-
tion if—
(1) the Attorney General decides that—
(A) the alien is in possession of critical reliable information
about a criminal organization or enterprise;
(B) the alien is willing to supply or has supplied that informa-
tion to federal or state law enforcement authorities or a federal
or state court; and
(C) the presence of the alien in the United States is essential
to the success of an authorized criminal investigation or the suc-
cessful prosecution of an individual involved in the criminal orga-
nization or enterprise;
(2) the Secretary of State and the Attorney General jointly decide
that the alien—
(A) is in possession of critical reliable information about a ter-
rorist organization, enterprise, or operation;
(B) is willing to supply or has supplied that information to Gov-
ernment law enforcement authorities or a federal court;
(C) will be or has been placed in danger as a result of providing
that information; and
(D) is eligible to receive a reward under section 36(a) of the
State Department Basic Authorities Act of 1956 (22 U.S.C.
2708(a)); or
(3)(A) the alien is the spouse, son or daughter, or parent of an alien
described in clause (1) or (2) of this subsection accompanying or fol-
lowing to join that alien; and
(B) the Attorney General (with respect to an alien described in
clause (1) of this subsection) or the Secretary and the Attorney Gen-
eral jointly (with respect to an alien described in clause (2) of this sub-
section) consider the nonimmigrant classification of the spouse, son or
daughter, or parent appropriate.
(b) NUMERICAL AND TIME LIMITATIONS.—(1) Not more than—
(A) 200 aliens may be provided a visa as a nonimmigrant classified
under subsection (a)(1) of this section in a fiscal year; and
(B) 50 aliens may be provided a visa as a nonimmigrant classified
under subsection (a)(2) of this section in a fiscal year.
(2) An alien classified as a nonimmigrant under subsection (a)(1) or (2)
of this section may be admitted to the United States for not more than 3
years. The Attorney General may not extend the period of admission.
(3) An alien classified as a nonimmigrant under subsection (a)(1) or (2)
of this section may not be admitted to the United States after September
13, 1999.
(c) ALIEN REQUIREMENTS.—As a condition of admission and continued
stay in lawful status, an alien classified as a nonimmigrant under subsection
(a)(1) or (2) of this section—
(1) shall report at least quarterly to the Attorney General informa-
tion concerning the alien’s whereabouts and activities the Attorney
General requires;
(2) may not be convicted, after the alien is admitted to the United
States, of a criminal offense punishable by a term of imprisonment of
at least one year;
(3) must have executed a form waiving the alien’s right to contest,
other than on the basis of an application for withholding of removal,
any action for removal of the alien begun before the alien obtains law-
ful permanent resident status; and
(4) shall comply with any other condition, limitation, or restriction
the Attorney General imposes.
(d) REPORT BY ATTORNEY GENERAL.—The Attorney General shall sub-
mit a report annually to the Committees on the Judiciary of the House of
Representatives and the Senate on—
(1) the number of aliens classified as nonimmigrants under sub-
section (a)(1) or (2) of this section and admitted to the United States;
(2) the number of successful criminal prosecutions or investigations
resulting from the cooperation of those aliens;
(3) the number of terrorist acts prevented or frustrated resulting
from the cooperation of those aliens;
(4) the number of aliens classified as nonimmigrants under sub-
section (a)(1) or (2) of this section and admitted to the United States
whose admission or cooperation has not resulted in successful criminal
prosecution or investigation or the prevention or frustration of a terror-
ist act; and
(5) the number of aliens who have failed to report as required under
subsection (c)(1) of this section or who have been convicted of crimes
in the United States after the date of their admission as non-
immigrants classified under subsection (a)(1) or (2) of this section.
100
SUBCHAPTER II—SPECIAL REQUIREMENTS
§ 2351. Employer applications for aliens employed tempo-
rarily in specialty occupations or as fashion mod-
els
(a) GENERAL.—An alien may be admitted as, or granted the status of,
a nonimmigrant classified under section 2313(a)(1) or (2) of this title only
after the employer intending to employ the alien files an application with
the Secretary of Labor stating the following:
(1) The employer—
(A) during the period of authorized employment, is offering and
will offer the nonimmigrant wages that, based on the best infor-
mation available at the time the application is filed, are at least
the greater of—
(i) the actual wage level paid by the employer to all other
individuals with similar experience and qualifications for the
specific employment in question; or
(ii) the prevailing wage level of the occupational classifica-
tion in the area of employment; and
(B) will provide working conditions for the nonimmigrant that
will not adversely affect the working conditions of workers simi-
larly employed.
(2) There is no strike or lockout during a labor dispute in the occu-
pational classification at the place of employment.
(3) At the time the application was filed, the employer—
(A) provided notice of the filing of an application under this
subsection to the bargaining representative of the employer’s em-
ployees in the occupational classification and area for which aliens
are sought; or
(B) if there is no bargaining representative, posted notice of the
filing in conspicuous locations at the place of employment.
(4) There is a specification of the number of workers sought, the oc-
cupational classification in which the workers will be employed, and
wage rate and conditions under which they will be employed.
(b) PUBLIC AVAILABILITY OF APPLICATIONS AND APPLICATION LISTS.—
(1) Not later than one working day after the date on which an application
under this subsection is filed, the employer shall make available for public
examination at the employer’s principal place of business or worksite a copy
of each application filed under subsection (a) of this section and necessary
accompanying documentation.
(2) On a current basis and by employer and occupational classification,
the Secretary shall compile a list of the applications filed. That list shall
101
include the wage rate, number of aliens sought, period of intended employ-
ment, and the date of need. The Secretary shall make that list available for
public examination in the District of Columbia.
(c) SECRETARIAL REVIEW OF APPLICATIONS.—The Secretary shall re-
view an application only for completeness and obvious inaccuracies. Unless
the Secretary finds that the application is incomplete or obviously inac-
curate, the Secretary shall make the certification described in section
2313(a)(1)(C) or (2)(B) of this title not later than 7 days after the date
the application is filed.
(d) FAILURE TO MEET APPLICATION CONDITIONS AND MISREPRESENTA-
TIONS.—(1) The Secretary shall establish a procedure for receiving, inves-
tigating, and disposing of complaints about a petitioner’s failure to meet a
condition specified by an application submitted under subsection (a) of this
section or a petitioner’s misrepresentation of a material fact in that applica-
tion. An aggrieved person (including a bargaining representative) may file
a complaint under this subsection but the complaint must be filed not later
than 12 months after the date of the failure or misrepresentation. The Sec-
retary shall conduct an investigation as provided in this subsection if there
is reasonable cause to believe that a failure or misrepresentation has oc-
curred.
(2) Not later than 30 days after the date a complaint is filed, the Sec-
retary shall decide whether a reasonable basis exists to make a finding
under paragraph (3) or (4) of this subsection. If the Secretary decides that
a reasonable basis exists, the Secretary shall provide interested parties no-
tice and an opportunity for a hearing under section 556 of title 5 about
the complaint not later than 60 days after deciding that a reasonable basis
exists. If a hearing is requested, the Secretary shall make a finding about
the complaint not later than 60 days after the date of the hearing. The Sec-
retary may consolidate hearings on similar complaints about the same appli-
cant.
(3) If the Secretary finds, after notice and an opportunity for a hearing
under paragraph (2) of this subsection, that there has been a failure to
meet a condition of subsection (a)(2) of this section, a substantial failure
to meet a condition described in subsection (a)(3) or (4) of this section, a
willful failure to meet a condition of subsection (a)(1) of this section, or
misrepresentation of a material fact in an application—
(A) the Secretary shall notify the Attorney General of that finding
and may impose administrative remedies the Secretary decides are ap-
propriate, including a civil penalty of not more than $1,000 for each
violation; and
102
(B) the Attorney General may not approve a petition filed by the em-
ployer under any of sections 2313–2319 or 2325 of this title or sub-
chapter I of chapter 43 for at least one year.
(4) If the Secretary finds after notice and an opportunity for a hearing
under paragraph (2) of this subsection that an employer has not paid wages
at the wage level specified under the application and required under sub-
section (a)(1) of this section, the Secretary shall order the employer to pro-
vide back pay required to comply with subsection (a)(1) whether or not a
penalty has been imposed under paragraph (3) of this subsection.
§ 2352. Advisory opinions for aliens with extraordinary abil-
ity or with distinction in the arts, motion pictures,
or television
(a) GENERAL REQUIREMENTS.—(1) The Attorney General may approve
a petition—
(A) for an alien described in section 2318(a)(1)(A)(i) or (ii) of this
title, only after the petitioner consults with a peer group or other per-
son (including a labor organization) the petitioner chooses with exper-
tise in the specific field involved by submitting with the petition an ad-
visory opinion from that group or person;
(B) for an alien described in section 2318(a)(2)(A)–(C)(i) of this
title, only after the petitioner consults with a labor organization with
expertise in the area of the skills and experience involved by submitting
with the petition an advisory opinion from that labor organization; or
(C) for an alien described in section 2318(a)(1)(A)(iii) or (2)(C)(ii)
of this title, after consulting with the appropriate labor organization
representing the alien’s occupational peers and a management organi-
zation in the area of the alien’s ability.
(2) An opinion by a labor organization or management organization about
an alien referred to in paragraph (1)(C) of this subsection is coming to the
United States for a motion picture or television production is advisory only.
An opinion recommending denial of an application for that alien must be
in writing. In making a decision on the petition, the Attorney General shall
consider the exigencies and scheduling of the production. The Attorney Gen-
eral shall attach any advisory opinion to that decision.
(3)(A) If a petitioner does not submit an advisory opinion from an appro-
priate labor organization as required by paragraph (1)(A) or (B) of this
subsection, the Attorney General shall forward a copy of the petition and
supporting documents to the national office of an appropriate labor organi-
zation not later than 5 days after receiving the petition. If the employer’s
employees in the occupational classification for which the alien is being
103
sought have a collective bargaining representative, that representative is the
appropriate labor organization.
(B) A person or labor organization receiving a copy of a petition as pro-
vided in subparagraph (A) of this paragraph has not more than 15 days
after receiving the petition to submit a written advisory opinion or provide
a letter stating that the person or organization has no objection. At the end
of the 15-day period, the Attorney General shall give the petitioner an op-
portunity, when appropriate, to provide rebuttal evidence. The Attorney
General shall act on the petition not later than 14 days after the end of
the 15-day period, or if rebuttal evidence is provided, not later than 14 days
after receiving that evidence. The Attorney General may shorten a time pe-
riod under this paragraph for emergency reasons unless the shorter period
is an unreasonable burden on a participant in the process.
(4) If a petitioner referred to in paragraph (1)(A) or (B) of this sub-
section establishes that an appropriate peer group (including a labor organi-
zation) does not exist, the Attorney General shall act on the petition without
requiring an advisory opinion.
(5) The Attorney General shall prescribe regulations to establish expe-
dited consultation procedures for nonimmigrant—
(A) artists and entertainers described in section 2318 of this title to
accommodate the exigencies and scheduling of a given production or
event; and
(B) athletes described in section 2318(a)(1) of this title in the case
of emergency circumstances, including trades during a season.
(6) Consultation with a nongovernmental entity does not authorize the
Attorney General to delegate authority under this subsection to a non-
governmental entity. The Attorney General shall give advisory opinions
under this subsection the weight the Attorney General decides, in the Attor-
ney General’s sole discretion, is appropriate.
(b) WAIVERS.—The Attorney General shall prescribe regulations to pro-
vide for the waiver of the consultation requirement under subsection
(a)(1)(A) of this section for an alien admitted to the United States as a
nonimmigrant classified under section 2318(a)(1)(A)(ii) of this title because
of distinction in the arts and who is seeking to be readmitted to perform
similar services within 2 years after the date of a consultation under sub-
section (a)(1)(A) of this section. Not later than 5 days after a waiver is
provided, the Attorney General shall forward a copy of the petition and sup-
porting documents to the national office of the appropriate labor organiza-
tion.
104
§ 2353. Advisory opinions for athletes and entertainers
(a) GENERAL REQUIREMENTS.—(1) The Attorney General may approve
a petition for an alien described in—
(A) section 2319(a)(1)(A), (B), or (D) of this title, only after the
petitioner consults with a labor organization with expertise in the spe-
cific field of athletics or entertainment involved by submitting with the
petition an advisory opinion from that labor organization; or
(B) section 2319(a)(1)(C) of this title, only after consultation with
labor organizations representing artists and entertainers in the United
States.
(2) If a petitioner does not submit an advisory opinion from an appro-
priate labor organization required by paragraph (1)(A) of this subsection,
the Attorney General shall forward a copy of the petition and supporting
documents to the national office of an appropriate labor organization not
later than 5 days after receiving the petition. If the employer’s employees
in the occupational classification for which the alien is being sought have
a collective bargaining representative, that representative is the appropriate
labor organization.
(3) A person or labor organization receiving a copy of a petition as pro-
vided in paragraph (2) of this subsection has not more than 15 days after
receiving the petition to submit a written advisory opinion or provide a let-
ter stating that the person or organization has no objection. At the end of
the 15-day period, the Attorney General shall give the petitioner an oppor-
tunity, when appropriate, to provide rebuttal evidence. The Attorney Gen-
eral shall act on the petition not later than 14 days after the end of the
15-day period, or if rebuttal evidence is provided, not later than 14 days
after receiving that evidence. The Attorney General may shorten a time pe-
riod under this paragraph for emergency reasons unless the shorter period
is an unreasonable burden on a participant in the process.
(4) If a petitioner referred to in paragraph (1)(A) of this subsection es-
tablishes that an appropriate peer group (including a labor organization)
does not exist, the Attorney General shall act on the petition without requir-
ing an advisory opinion.
(5) The Attorney General shall prescribe regulations to establish expe-
dited consultation procedures for nonimmigrant—
(A) artists and entertainers under section 2319 of this title to ac-
commodate the exigencies and scheduling of a given production or
event; and
(B) athletes described in section 2319(a)(1)(A) of this title in the
case of emergency circumstances, including trades during a season.
105
(6) Consultation with a nongovernmental entity does not authorize the
Attorney General to delegate authority under this subsection to a non-
governmental entity. The Attorney General shall give advisory opinions
under this subsection the weight the Attorney General decides, in the Attor-
ney General’s sole discretion, is appropriate.
(b) WAIVERS AND NONAPPLICATION.—(1) The Attorney General may
waive—
(A) in consideration of special circumstances, the international rec-
ognition requirement of section 2319(a)(1)(B)(i) of this title for an en-
tertainment group that is recognized nationally as being outstanding in
its discipline for a sustained and substantial period of time; and
(B) 
the 
one-year 
relationship 
requirement 
of 
section
2319(a)(1)(B)(ii) of this title for an alien who—
(i) replaces an essential member of the group, because of illness
or unanticipated or exigent circumstances; or
(ii) augments the group by performing a critical role.
(2) The one-year relationship requirement of section 2319(a)(1)(B)(ii) of
this title does not apply to 25 percent of the performers in a group.
(3) The requirements of section 2319(a)(1)(B)(i) and (ii) of this title do
not apply to an alien who performs as part of a circus or circus group or
who is an integral and essential part of the performance of that circus or
group, but only if the alien is coming to the United States to join a circus
that has been recognized nationally as outstanding for a sustained and sub-
stantial period of time or as part of such a circus.
SUBCHAPTER III—MISCELLANEOUS
§ 2371. Information on foreign students and other exchange
program participants
(a) DEFINITIONS.—In this section—
(1) ‘‘approved institution of higher education’’ means a college or
university the Attorney General approves, in consultation with the Sec-
retary of Education, under section 2310(b) or 2311(b) of this title.
(2) ‘‘designated exchange visitor program’’ means a program that
has been—
(A) designated by the Director of the United States Information
Agency for purposes of section 2312(a)(1)(C) of this title; and
(B) selected by the Attorney General for purposes of the infor-
mation collection program described in subsection (b) of this sec-
tion.
(b) GENERAL.—(1) In consultation with the Secretaries of State and
Education, the Attorney General shall develop and carry out a program to
collect the information described in subsection (c) of this section from ap-
106
proved institutions of higher education and designated exchange visitor pro-
grams in the United States with respect to each alien who—
(A) has the status, or is applying for the status, of a nonimmigrant
classified under section 2310, 2311, or 2312 of this title; and
(B) is a national of a country the Attorney General designates under
paragraph (2) of this subsection.
(2) In consultation with the Secretary of State, the Attorney General
shall initially designate at least 5 countries for purposes of paragraph
(1)(B) of this subsection and may designate additional countries at any time
while the information collection program under this section is being carried
out.
(3) The Family Educational Rights and Privacy Act of 1974 (20 U.S.C.
1232g) does not apply to aliens described in paragraph (1) of this sub-
section to the extent the Attorney General determines necessary to carry out
the information collection program under this section.
(c) INFORMATION TO BE COLLECTED.—(1) The following information
shall be collected under subsection (b) of this section for each alien de-
scribed in subsection (b)(1) of this section:
(A) the identity and current address in the United States of the
alien.
(B) the nonimmigrant classification of the alien.
(C) the date on which—
(i) a visa under that classification was issued or extended; or
(ii) the Attorney General approved a change to that classifica-
tion.
(D) in the case of a student at an approved institution of higher edu-
cation—
(i) the current academic status of the alien, including whether
the alien is maintaining status as a full-time student; and
(ii) any disciplinary action taken by the institution against the
alien as a result of the alien’s being convicted of a crime.
(E) in the case of a participant in a designated exchange visitor pro-
gram—
(i) whether the alien is satisfying the terms of that program;
and
(ii) any change in the alien’s participation as a result of the
alien’s being convicted of a crime.
(2) The information described in paragraph (1) of this subsection shall
be collected electronically, where practicable.
(3) To the extent practicable, the Attorney General shall—
107
(A) design the information collection program under this section in
a way that permits approved institutions of higher education and des-
ignated exchange visitor programs to use existing software for the col-
lection, storage, and data processing of information described in para-
graph (1) of this subsection; and
(B) use or enhance existing software for the collection, storage, and
data processing of information described in paragraph (1) of this sub-
section.
(d) PARTICIPATION BY INSTITUTIONS OF HIGHER EDUCATION AND EX-
CHANGE VISITOR PROGRAMS.— (1) The information described in subsection
(c) of this section shall be provided by—
(A) an approved institution of higher education as a condition of the
continued approval of the institution under section 2310 or 2311 of
this title; and
(B) an approved institution of higher education or a designated ex-
change visitor program as a condition of the granting of authority to
the institution or program to issue documents to an alien demonstrat-
ing the alien’s eligibility for a visa under section 2310, 2311, or 2312
of this title.
(2) If an approved institution of higher education or a designated ex-
change visitor program fails to provide the specified information, the ap-
provals and authority to issue documents referred to in paragraph (1) of
this subsection shall be revoked or denied.
(e) FEES.—(1) An approved institution of higher education and a des-
ignated exchange visitor program shall charge and collect a fee in the
amount the Attorney General establishes under paragraph (4) of this sub-
section from each alien—
(A) who has the status of a nonimmigrant classified under section
2310, 2311, or 2312 of this title (other than a nonimmigrant classified
under section 2312 who has come to the United States as a participant
in a program sponsored by the Federal Government); and
(B) for whom the institution or program is required by subsection
(b) of this section to collect information.
(2) The institution or program shall collect the fee required under this
subsection when—
(A) the alien first registers with the institution or program after en-
tering the United States; or
(B) in a case where a registration referred to in subparagraph (A)
of this paragraph does not exist, the alien first begins activities in the
United States with the institution or program.
108
(3) Each institution and program shall remit the fees collected under
paragraph (1) of this subsection to the Attorney General under a schedule
established by the Attorney General.
(4)(A) The Attorney General shall establish the amount of the fee re-
quired under this subsection. The amount of the fee shall be based on the
Attorney General’s estimate of the cost per alien of carrying out the infor-
mation collection program under this section. Except as provided in sub-
section (g)(3) of this section, the fee imposed on any individual may not
be more than $100.
(B) Fees collected under this subsection shall be deposited as offsetting
receipts into the Immigration Examinations Fee Account established under
section 346 of this title. The amounts deposited remain available until ex-
pended by the Attorney General to reimburse any appropriation by the
amount paid from that appropriation for expenses in carrying out this sec-
tion.
(f) REPORT.—Not later than 4 years after the beginning of the informa-
tion collection program under this section, the Attorney General and the
Secretaries of State and Education shall jointly submit to the Committees
on the Judiciary of the Senate and the House of Representatives a report
on the operations of the program and the feasibility of expanding the pro-
gram to cover the nationals of all countries.
(g) WORLDWIDE EXPANSION OF PROGRAM.—(1) Not later than 6 months
after the submission of the report required by subsection (f) of this section,
the Attorney General, in consultation with the Secretaries of State and Edu-
cation, shall begin expansion of the information collection program under
this section to cover the nationals of all countries.
(2) The expansion shall be completed not later than one year after the
submission of the report required by subsection (f) of this section.
(3) After the program has been expanded, the Attorney General may re-
vise, on a periodic basis, the amount of the fee charged and collected under
subsection (e) of this section to take into account changes in the cost of
carrying out the program.
(h) DEADLINE.—The information collection program under this section
shall begin not later than January 1, 1998.
§ 2372. Transportation costs payable by employers of certain
nonimmigrants
(a) NONIMMIGRANTS CLASSIFIED UNDER SECTION 2313(a)(1) OR (2) OR
2315(a)(1).—If the employer of an alien who has the status of a non-
immigrant classified under section 2313(a)(1) or (2) or 2315(a)(1) of this
title dismisses the alien from employment before the end of the period of
109
authorized admission, the employer is liable for the reasonable costs of re-
turn transportation of the alien.
(b) NONIMMIGRANTS CLASSIFIED UNDER SECTION 2318 OR 2319.—If
the employment of an alien who is admitted to the United States as a non-
immigrant classified under section 2318 or 2319 of this title ends for rea-
sons other than voluntary resignation, the employer whose offer of employ-
ment provided the basis of the nonimmigrant status of the alien and the
petitioner 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 25—TEMPORARY AGRICULTURAL WORKERS
Sec.
2501.
Definitions.
2502.
Certification requirements.
2503.
Applications for certification.
2504.
Conditions for issuing certifications.
2505.
Associations of agricultural producers.
2506.
Housing.
2507.
Expedited administrative review.
2508.
Disqualification of aliens for violating conditions of prior admission.
2509.
Enforcement authority of the Secretary of Labor.
2510.
Endorsement of entry and exit documentation.
2511.
Preemption of state and local law.
2512.
Biennial reports.
2513.
Approval of regulations.
2514.
Authorization of appropriations.
§ 2501. Definitions
In this chapter—
(1) ‘‘temporary agricultural worker’’ means a nonimmigrant classi-
fied under section 2314 of this title.
(2) ‘‘United States worker’’ means an individual who is not an unau-
thorized alien (as defined in section 11101 of this title) with respect
to particular employment.
§ 2502. Certification requirements
(a) REQUIREMENTS.—Before the Attorney General approves a petition
filed under section 2314 of this title by a prospective employer of an alien
to be employed as a temporary agricultural worker, the employer must apply
to the Secretary of Labor for a certification that—
(1) there are not sufficient United States workers who are able, will-
ing, and qualified, and who will be available at the time and place need-
ed, to perform the labor or services described in the petition; and
(2) employment of the alien to provide the labor or services will not
affect adversely the wages and working conditions of United States
workers similarly employed.
110
(b) REGULATIONS.—The Secretary shall maintain regulations based on
the findings the Secretary was required to make under section
218(c)(3)(B)(iii) of the Immigration and Nationality Act after considering
the findings of the report mandated by section 403(a)(4)(D) of the Immi-
gration Reform and Control Act of 1986 (Public Law 99–603, 100 Stat.
3441) as well as other relevant materials, including evidence of benefits to
United States workers and costs to employers, addressing the advisability
of continuing a policy which requires an employer, as a condition for certifi-
cation under this section, to continue to accept qualified, eligible United
States workers for employment after the date temporary agricultural work-
ers depart for work with the employer.
§ 2503. Applications for certification
(a) DEADLINE FOR FILING.—The Secretary of Labor may not require
that an application for a certification under section 2502 of this title be
filed more than 60 days before the first date the employer requires the labor
or services of a temporary agricultural worker.
(b) NOTICE OF DEFICIENCIES.—If an application does not meet the con-
ditions for issuing a certification (except the conditions specified by section
2502(a)(1) of this title), the Secretary shall—
(1) notify the employer in writing not later than 7 days after the
application is filed, giving the reasons the application does not meet the
conditions; and
(2) allow the employer to submit promptly an amended application.
(c) FEE.—The Secretary may prescribe by regulation a fee to cover the
reasonable costs of processing an application for certification.
§ 2504. Conditions for issuing certifications
Not later than 20 days before the labor or services of a temporary agri-
cultural worker are first required, the Secretary of Labor shall issue a cer-
tification under section 2502 of this title if the following conditions are met:
(1) The conditions specified by section 2502(a) of this title are met.
(2) The employer has complied with the requirements for certifi-
cation, including requirements the Secretary prescribes for recruiting
United States workers.
(3) The Secretary concludes that the employer has made positive re-
cruitment efforts within a multi-state region of traditional or expected
labor supply in which the Secretary finds there are a significant num-
ber of qualified United States workers who, if recruited, would be will-
ing to work at the time and place needed. Positive recruitment under
this paragraph is in addition to, and shall be conducted within the
same time period as, the circulation of the employer’s job offer through
the interstate employment service system. The requirement to engage
111
in positive recruitment ends on the date the temporary agricultural
workers depart for the employer’s place of employment.
(4) The employer does not have, or has not been provided with refer-
rals of, qualified United States workers who have indicated their avail-
ability to perform the labor or services on the terms of a job offer
meeting the Secretary’s requirements. In considering whether a specific
qualification in a job offer is appropriate, the Secretary shall apply the
normal and accepted qualifications required by employers not employ-
ing temporary agricultural workers in the same or comparable occupa-
tions and crops.
(5) The employer has provided the Secretary with satisfactory assur-
ances that if the employment for which the certification is sought is
not covered by a state workers’ compensation law, the employer will
provide, at no cost to the worker, insurance covering injury and disease
arising out of and during the worker’s employment that will provide
benefits at least equal to those provided under the state workers’ com-
pensation law for comparable employment.
(6) There is no strike or lockout during a labor dispute that, under
regulations prescribed by the Secretary, precludes the certification.
(7) The employer employed temporary agricultural workers during
the prior 2 years, and the Secretary, after notice and an opportunity
for a hearing, has not found that the employer during that period sub-
stantially violated a material condition of the certification related to the
employment of nonimmigrant or United States workers. The Secretary
may decide not to approve a certification for not more than 3 years
for an employer who commits a violation described in this paragraph.
§ 2505. Associations of agricultural producers
(a) PERMITTED FILINGS.—An association of agricultural producers using
agricultural services may file—
(1) a petition under section 2314(b) of this title for an alien to be
employed as a temporary agricultural worker; and
(2) an application for a certification under section 2502 of this title.
(b) ASSOCIATIONS ACTING AS EMPLOYERS.—If an association referred to
in subsection (a) of this section is the joint or sole employer of a temporary
agricultural worker, a certification issued under section 2502 of this title
to the association may be used for the certified job opportunities of any of
the members of the association. The worker may be transferred among the
members to perform agricultural services of a temporary or seasonal nature
for which the certification was issued.
(c) EFFECT OF VIOLATIONS.—(1) If a member of an association that is
a joint employer of a temporary agricultural worker is found to have com-
112
mitted a violation that results in the Secretary of Labor deciding not to ap-
prove a certification of the member because the condition under section
2504(7) of this title has not been met, the decision applies only to that
member unless the Secretary decides that the association or another mem-
ber participated in, or knew or had reason to know of, the violation.
(2) If an association that is a joint employer is found to have committed
a violation that results in the Secretary deciding not to approve a certifi-
cation of the association because the condition under section 2504(7) of this
title has not been met, the decision applies only to the association unless
the Secretary decides that a member participated in, or knew or had reason
to know of, the violation.
(3) If an association, certified as the sole employer of a temporary agri-
cultural worker, is found to have committed a violation that results in the
Secretary deciding not to approve a certification of the association because
the condition under section 2504(7) of this title has not been met, a mem-
ber of the association, during the period the decision is in effect, may not
be the beneficiary of the services of temporary agricultural workers in the
commodity and occupation in which the worker was employed by the asso-
ciation whose certification was not approved, unless the member employs the
workers in the commodity and occupation directly or through an association
that is a joint employer of the workers with the member.
§ 2506. Housing
(a) REQUIREMENT.—An employer shall provide housing for temporary
agricultural workers as provided by regulations prescribed by the Secretary
of Labor.
(b) REGULATIONS.—(1) Regulations prescribed under this section shall
allow the employer, at the employer’s option, to provide housing meeting ap-
plicable standards of the Federal Government for temporary labor camps or
to secure housing that meets applicable local standards for rental or public
accommodations or other substantially similar class of habitation. In the ab-
sence of applicable local standards, state standards for those accommoda-
tions or that class of habitation shall apply. In the absence of applicable
local and state standards, standards of the Government for temporary labor
camps shall apply.
(2) The regulations shall include specific requirements about housing for
employees principally engaged in the range production of livestock.
(3) When the prevailing practice in the area and occupation of intended
employment is to provide family housing, the employer shall provide family
housing to workers with families requesting it.
113
(c) EXCEPTION.—This section does not require an employer to provide
housing for workers not entitled to it under the temporary labor certifi-
cation regulations in effect on June 1, 1986.
§ 2507. Expedited administrative review
(a) PROCEDURE FOR EXPEDITED REVIEW.—Regulations prescribed by
the Secretary of Labor under this chapter shall provide for an expedited
procedure for a review of a decision of the Secretary not to approve or to
revoke a certification or, at the applicant’s request, a new hearing on the
decision.
(b) DECISIONS ON AVAILABILITY OF UNITED STATES WORKERS.—(1)
The Secretary shall make a new decision about an application for certifi-
cation under section 2502 of this title expeditiously, but not later than 72
hours after the time the new decision is requested, if the certification origi-
nally was not approved in any part because of the availability of able, will-
ing, and qualified United States workers and they are not available at the
time the labor or services are needed.
(2) An employer asserting that a United States worker referred to the
employer is not able, willing, or qualified has the burden of proving that
the worker is not able, willing, or qualified because of employment-related
reasons.
§ 2508. Disqualification of aliens for violating conditions of
prior admission
An alien may not be admitted to the United States as a temporary agri-
cultural worker if, during the prior 5 years, the alien was admitted as a
temporary agricultural worker and violated a term of that admission.
§ 2509. Enforcement authority of the Secretary of Labor
The Secretary of Labor may take actions necessary to ensure that em-
ployers comply with the terms of employment under this chapter, includ-
ing—
(1) imposing appropriate penalties; and
(2) seeking appropriate equitable relief, including specific perform-
ance of contractual obligations.
§ 2510. Endorsement of entry and exit documentation
The Attorney General shall provide for the endorsement of entry and exit
documentation of temporary agricultural workers necessary to carry out this
chapter and to provide notice under chapter 111 of this title.
§ 2511. Preemption of state and local law
This chapter and sections 2101 and 2314 of this title preempt state and
local law regulating the admissibility of nonimmigrant workers.
114
§ 2512. Biennial reports
(a) REPORTING REQUIREMENT.—Not later than November 6 of each
even-numbered year, the President shall submit a report on the temporary
agricultural worker program under this chapter to the Committees on the
Judiciary of the Senate and the House of Representatives. The report shall
include—
(1) the number of temporary agricultural workers permitted to be
employed under the program in each year;
(2) the compliance of employers and temporary agricultural workers
with the terms of the program;
(3) the impact of the program on the labor needs of United States
agricultural employers and on the wages and working conditions of
United States agricultural workers; and
(4) recommendations for changing the program, including—
(A) improving the timeliness of decisions about the admission
of temporary agricultural workers under the program;
(B) removing any economic disincentive to hiring United States
workers for jobs for which temporary agricultural workers have
been requested;
(C) improving cooperation among government agencies, employ-
ers, employer associations, workers, unions, and other worker as-
sociations to end the dependence of any industry on a constant
supply of temporary agricultural workers; and
(D) the relative benefits to United States workers and burdens
on employers of the policy of requiring employers, as a condition
for certification under the program, to continue to accept qualified
United States workers for employment after the date the tem-
porary agricultural workers depart for work with the employer.
(b) RECOMMENDATIONS CONSISTENT WITH POLICY.—The recommenda-
tions under subsection (a)(4)(D) of this section shall be made in furtherance
of the policy that aliens be admitted as temporary agricultural workers only
if the conditions specified by section 2502(a) of this title are satisfied.
§ 2513. Approval of regulations
In consultation with the Secretaries of Labor and Agriculture, the Attor-
ney General shall approve all regulations prescribed under this chapter and
section 2314 of this title.
§ 2514. Authorization of appropriations
(a) GENERAL AUTHORIZATIONS.—Necessary amounts may be appro-
priated each fiscal year to—
(1) the Secretary of Labor to make findings and issue certifications
under this chapter and section 4104(g)(2) of this title; and
115
(2) the Secretary of Agriculture to carry out the Secretary’s duties
and powers under section 2314 of this title related to this chapter.
(b) SPECIFIC AUTHORIZATIONS.—Not more than $10,000,000 may be ap-
propriated each fiscal year—
(1) to recruit United States workers for temporary labor and services
that otherwise might be performed by temporary agricultural workers;
and
(2) to monitor the terms under which temporary agricultural workers
and United States workers employed by the same employer are em-
ployed in the United States.
CHAPTER 27—ALIEN CREWMEMBERS
SUBCHAPTER I—GENERAL
Sec.
2701.
Providing lists.
2702.
Reports on unlawful landings.
2703.
Conditional permits to land temporarily.
2704.
Control of alien crewmembers.
2705.
Alien crewmembers afflicted with certain disabilities and diseases.
2706.
Discharging alien crewmembers.
SUBCHAPTER II—LONGSHORE WORK
2721.
Definition and application.
2722.
General.
2723.
Prevailing practice.
2724.
Reciprocity.
2725.
Longshore work in Alaska.
SUBCHAPTER I—GENERAL
§ 2701. Providing lists
(a) ON ARRIVAL.—Except as provided in subsection (c) of this section,
when a vessel or aircraft arrives in the United States from a place outside
the United States, the owner, agent, master, commanding officer, or con-
signee of the vessel or aircraft shall give an immigration officer at the port
of arrival a list containing—
(1)(A) the name and position of each alien crewmember on the vessel
or aircraft;
(B) information on when and where each alien crewmember was
shipped or employed; and
(C) the name of each alien crewmember who is to be paid off or dis-
charged in the port of arrival; or
(2) information the Attorney General prescribes by regulation.
(b) ON DEPARTURE.—Except as provided in subsection (c) of this sec-
tion, before a vessel or aircraft departs from a port in the United States,
the owner, agent, master, commanding officer, or consignee of the vessel or
aircraft shall give an immigration officer at the port a list containing—
(1) the name of each alien crewmember—
116
(A) not employed on the vessel or aircraft when it arrived but
who is leaving on the vessel or aircraft;
(B) paid off or discharged at the port; or
(C) who deserted or landed at the port; or
(2) information the Attorney General prescribes by regulation.
(c) EXCEPTION.—The Attorney General shall prescribe when a list under
this section shall be given for a vessel operating only on the Great Lakes,
the Saint Lawrence River, and a connecting waterway.
(d) REGULATIONS ON ARRIVAL AND DEPARTURE.—The Attorney General
may prescribe by regulation when a vessel or aircraft is deemed under this
chapter to be arriving in, or departing from, the United States or a port
of the United States.
§ 2702. Reports on unlawful landings
As soon as it is discovered that an alien crewmember has landed unlaw-
fully in the United States from a vessel or aircraft, the owner, agent, mas-
ter, commanding officer, or consignee of the vessel or aircraft shall—
(1) report the unlawful landing in writing to an immigration officer;
and
(2) give the immigration officer a description of the crewmember and
information likely to lead to taking the crewmember into custody.
§ 2703. Conditional permits to land temporarily
(a) GENERAL REQUIREMENT.—An alien crewmember may land tempo-
rarily in the United States only as provided under this section or section
2705(b), 6121, or 6122 of this title.
(b) AUTHORITY TO ISSUE PERMITS.—Under regulations the Attorney
General prescribes, an immigration officer may issue an alien crewmember
a conditional permit to land temporarily in the United States if the officer
finds, after inspection, that the crewmember—
(1) is a nonimmigrant classified under section 2305 of this title;
(2) otherwise is admissible; and
(3) has agreed to accept the permit.
(c) PERIOD OF VALIDITY.—A permit issued under subsection (b) of this
section is valid for not more than—
(1) the period (but not more than 29 days) that the vessel or aircraft
on which the alien crewmember arrived remains in port if the immigra-
tion officer is satisfied the crewmember intends to leave on that vessel
or aircraft; or
(2) 29 days if the immigration officer is satisfied the crewmember
intends to leave on another vessel or aircraft within the period for
which the crewmember is allowed to land.
117
(d) REVOCATION.—(1) If an alien is issued a permit for a period under
subsection (c)(1) of this section, and an immigration officer then decides the
alien is not a crewmember or does not intend to leave on the vessel or air-
craft on which the alien arrived, the immigration officer, under regulations
prescribed by the Attorney General, may—
(A) revoke the permit;
(B) take the alien into custody; and
(C) if practicable, require the master or commanding officer of the
vessel or aircraft on which the alien arrived to detain the alien on the
vessel or aircraft.
(2) The owner of the vessel or aircraft on which an alien, detained under
paragraph (1)(C) of this subsection, arrived in the United States shall pay
the costs of detaining and removing the alien.
(3) An alien detained under paragraph (1)(C) of this subsection is not
entitled to a removal proceeding under section 6704 of this title.
§ 2704. Control of alien crewmembers
(a) DETENTION AND REMOVAL.—The owner, agent, master, commanding
officer, charterer, or consignee of a vessel or aircraft arriving in the United
States from a place outside the United States shall—
(1) detain an alien crewmember on the vessel, or, at the expense of
the aircraft owner, detain an alien crewmember of an aircraft at a
place an immigration officer designates, until—
(A) an immigration officer inspects, and a medical officer exam-
ines, the alien crewmember; and
(B) the alien crewmember is—
(i) issued a conditional permit to land temporarily under
section 2703(b) of this title; or
(ii) allowed to land temporarily under section 2705(b) or
6121 of this title for medical or hospital treatment; and
(2) remove an alien crewmember if required by an immigration offi-
cer, whether before or after the crewmember is allowed to land tempo-
rarily under section 2703(b), 2705(b), or 6121 of this title.
(b) PROOF OF FAILURE TO DETAIN OR REMOVE.—Except as the Attor-
ney General prescribes by regulation, proof that the name of an alien crew-
member is not on the outgoing manifest of the vessel or aircraft on which
the crewmember arrived in the United States from a place outside the Unit-
ed States, or that the master or commanding officer of the vessel or aircraft
reported the crewmember as a deserter, is prima facie evidence of the failure
to detain or remove the crewmember.
(c) REMOVAL ON ANOTHER VESSEL OR AIRCRAFT.—(1) If the Attorney
General finds that removing an alien crewmember under this section on the
118
vessel or aircraft on which the crewmember arrived is impracticable or will
cause unreasonable hardship to the crewmember, the Attorney General may
require the crewmember to be removed from any port on another vessel or
aircraft of the same owner unless the Attorney General finds removal on
such a vessel or aircraft to be impracticable. The owner of the vessel or air-
craft on which the crewmember arrived shall pay the costs of removing the
crewmember as required by this subsection, including the costs of transfer-
ring the crewmember within the United States under conditions the Attor-
ney General prescribes. The vessel or aircraft may be cleared only after the
costs are paid or the Attorney General is satisfied that payment is guaran-
teed.
(2) A transfer under this subsection is not a landing under this title.
§ 2705. Alien crewmembers afflicted with certain disabilities
and diseases
(a) EMPLOYMENT PROHIBITIONS.—An alien crewmember afflicted with
feeble-mindedness, insanity, epilepsy, tuberculosis, leprosy, or a dangerous
contagious disease may not be employed on a vessel or aircraft carrying pas-
sengers when the vessel or aircraft arrives in the United States from a place
outside the United States.
(b) HOSPITALIZATION AND OBSERVATION.—An alien crewmember found
on arrival at a port in the United States to be afflicted with feeble-minded-
ness, insanity, epilepsy, tuberculosis, leprosy, or a dangerous contagious dis-
ease shall be treated in a hospital designated by the immigration officer in
charge of the port. An alien crewmember suspected of being afflicted may
be removed from the vessel or aircraft on which the alien crewmember ar-
rived to an appropriate place for observation to enable an examining medical
officer to decide whether the crewmember is afflicted.
(c) PAYMENT OF COSTS.—The owner, agent, master, commanding officer,
or consignee of the vessel or aircraft on which the alien crewmember arrived
shall pay all costs incurred under subsection (b) of this section, including
burial if the crewmember dies. The costs may not be deducted from the
wages of the crewmember. The vessel or aircraft may be cleared only after
the costs are paid or payment is guaranteed and the Secretary of the Treas-
ury is notified by the immigration officer in charge of the port.
(d) RETURNING AN INCURABLE CREWMEMBER.—When the immigration
officer in charge of the port is satisfied that a crewmember hospitalized
under subsection (b) of this section cannot be cured within a reasonable
time, the owner of the vessel or aircraft on which the crewmember arrived
shall return the crewmember or pay the costs of returning the crewmember
under conditions the Attorney General prescribes to ensure that the crew-
119
member is cared for properly and the spread of contagious disease is pre-
vented.
§ 2706. Discharging alien crewmembers
A person may pay off or discharge an alien crewmember (except a crew-
member lawfully admitted for permanent residence) employed on a vessel or
aircraft arriving in the United States only with the consent of the Attorney
General.
SUBCHAPTER II—LONGSHORE WORK
§ 2721. Definition and application
(a) DEFINITION.—In this subchapter, ‘‘longshore work’’—
(1) means an activity in the United States or the coastal waters of
the United States related to—
(A) loading or unloading cargo of a vessel, whether or not inte-
gral to the vessel;
(B) operating cargo-related equipment; and
(C) handling mooring lines on the dock when the vessel is made
fast or let go; but
(2) does not include loading or unloading cargo for which the Sec-
retary of Transportation has prescribed regulations under section 311
of the Federal Water Pollution Control Act (33 U.S.C. 1321), chapter
37 of title 46, section 5103(b), 5104, 5106, 5107, or 5110 of title 49,
or section 4106 of the Oil Pollution Act of 1990 (Public Law 101–380,
104 Stat. 513) on—
(A) handling or stowing that cargo;
(B) manning, and the duties, qualifications, and training of the
officers and crewmembers of, vessels transporting that cargo; and
(C) reducing or eliminating discharge during ballasting, tank
cleaning, or handling of that cargo.
(b) APPLICATION.—This subchapter and section 10118 of this title do not
affect—
(1) the meaning or scope of longshore work under another provision
of law, a collective bargaining agreement, or an international agree-
ment; or
(2) the performance of longshore work by nationals of the United
States.
§ 2722. General
An alien crewmember may perform longshore work only as provided in
section 2723, 2724, or 2725 of this title.
§ 2723. Prevailing practice
(a) GENERAL.—(1) An alien crewmember performing a particular activity
of longshore work in or around a port is serving in a capacity required for
120
normal operation and service on a vessel under section 2305(a) of this title
if—
(A) each collective bargaining agreement for that port covering at
least 30 percent of the employees performing longshore work allows
that activity to be performed by alien crewmembers; or
(B)(i) there is no collective bargaining agreement for the port cover-
ing at least 30 percent of the employees performing longshore work;
and
(ii) except as provided in paragraph (2) of this subsection, an em-
ployer of the alien crewmember or the employer’s designated represent-
ative files an attestation described in subsection (b)(1) of this section
with the Secretary of Labor at least 14 days before the date the activ-
ity will be performed or, if necessary because of an unanticipated emer-
gency, not later than the date the activity will be performed.
(2) An employer must file an attestation under paragraph (1)(B)(ii) of
this subsection for a particular activity of longshore work involving the use
of an automated self-loading conveyor belt or vacuum-actuated system on
a vessel only if the Secretary finds under subsection (f)(2) of this section
that the particular activity of longshore work is not an activity described
in subsection (b)(1)(A) of this section.
(b) ATTESTATION REQUIREMENTS.—(1) The attestation filed with the
Secretary under subsection (a) of this section shall provide evidence that—
(A) the performance of the particular activity of longshore work by
an alien crewmember is allowed under the prevailing practice at the
port at the time of the filing and that the alien crewmember is not
being employed for that activity—
(i) during a strike or lockout in a labor dispute; or
(ii) to influence an election of a bargaining representative for
employees in the port; and
(B) the owner, agent, master, commanding officer, or consignee has
given notice of the attestation—
(i) to the bargaining representative of longshore workers at the
port; or
(ii) if there is no bargaining representative, to the longshore
workers employed at the port.
(2) An attestation—
(A) expires at the end of the one-year period beginning on the date
it is filed under subsection (a) of this section; and
(B) applies to alien crewmembers arriving in the United States dur-
ing that period if the owner, agent, master, commanding officer, or
consignee states in each list provided under section 2701 of this title
121
that the employer continues to comply with the conditions in the attes-
tation.
(3) An owner, agent, master, commanding officer, or consignee may pro-
vide a single list under section 2701 of this title to meet the requirements
of paragraph (2)(B) of this subsection for more than one alien crewmember.
(c) PUBLIC INFORMATION.—The Secretary shall compile and make avail-
able for public examination in a timely way in the District of Columbia—
(1) information identifying each owner, agent, master, commanding
officer, and consignee that has filed a list under section 2701 of this
title for an alien crewmember classified as a nonimmigrant under sec-
tion 2305(a) of this title for whom an attestation under subsection (a)
of this section or section 2725(b) of this title is filed; and
(2) for each employer a copy of—
(A) the attestation and accompanying documentation; and
(B) each list filed for the employer under section 2701 of this
title and described in clause (1) of this subsection.
(d) COMPLAINTS.—(1) Any aggrieved person, including a bargaining rep-
resentative, association the Secretary decides is appropriate, or other ag-
grieved person as provided under regulations of the Secretary, may file a
complaint—
(A) about an employer’s failure to meet conditions stated in an attes-
tation filed under subsection (a) of this section;
(B) about an employer’s misrepresentation of a material fact in the
attestation; or
(C) for longshore work described in subsection (a)(2) of this section,
that the particular activity of longshore work is not an activity de-
scribed in subsection (b)(1)(A) of this section.
(2) The Secretary shall establish a procedure for receiving, investigating,
and disposing of complaints filed under this subsection. The Secretary shall
conduct an investigation under this subsection promptly if there is reason-
able cause to believe the allegations of the complaint.
(3)(A) If the Secretary decides that reasonable cause exists to conduct
an investigation about a complaint filed under paragraph (1)(A) or (B) of
this subsection, the person making the complaint may request that the em-
ployer stop, during the hearing procedure under subsection (e) of this sec-
tion, the particular activity of longshore work attested to by the employer.
The employer shall be notified of the request and shall respond not later
than 14 days after receiving the notice.
(B) If the Secretary makes an initial decision that the complaint is sup-
ported by a preponderance of the evidence submitted, the Secretary imme-
122
diately shall require that the employer stop that activity until after the hear-
ing procedure under subsection (e) of this section.
(4)(A) If the Secretary decides that reasonable cause exists to conduct
an investigation about a complaint under paragraph (1)(C) of this sub-
section, the person making the complaint may request that the employer
stop, during the hearing procedure under subsection (e) of this section, the
particular activity of longshore work involved in the complaint unless the
employer files an attestation with the Secretary under subsection (a) of this
section. The employer shall be notified of the request and shall respond not
later than 14 days after receiving the notice.
(B) If the Secretary makes an initial decision that the complaint is sup-
ported by a preponderance of the evidence submitted, the Secretary imme-
diately shall require that the employer stop that activity until after the hear-
ing procedure under subsection (e) of this section, unless the employer files
an attestation under subsection (a) of this section.
(e) PROCEEDINGS.—Not later than 180 days after a complaint is filed
under subsection (d) of this section, or later for good cause shown, the Sec-
retary shall decide whether a basis exists to make a finding described in
subsection (f) of this section. The Secretary shall give interested persons no-
tice of that decision and an opportunity for a hearing on the complaint not
later than 60 days after making the decision.
(f) FINDINGS.—(1)(A) If, after notice and an opportunity for a hearing
under subsection (e) of this section, the Secretary finds that an employer
has failed to meet a condition, or has misrepresented a material fact, in an
attestation filed under subsection (a) of this section, the Secretary—
(i) shall notify the Attorney General of the finding; and
(ii) may impose other administrative remedies, including a civil pen-
alty under section 10118 of this title, the Secretary decides are appro-
priate.
(B) When the Attorney General receives notice under this paragraph, the
Attorney General shall deny any vessel owned or chartered by the employer
entry to a port of the United States for not more than one year.
(2) For longshore work described in subsection (a)(2) of this section, if
the Secretary finds, after notice and an opportunity for a hearing under
subsection (e) of this section and based on a preponderance of the evidence
submitted by any interested person, that the particular activity of longshore
work is not an activity described in subsection (b)(1)(A) of this section—
(A) the Secretary shall notify the Attorney General of the finding;
and
(B) the employer shall file an attestation under subsection (a) of this
section for that activity.
123
(3) When the Secretary finds that an alien crewmember is not allowed
to perform a particular activity of longshore work under the prevailing prac-
tice at a port, another attestation under subsection (a) of this section about
that activity in that port may not be filed for one year.
(g) LONGSHORE WORK
IN ALASKA.—Except as provided in section
2725(c) of this title, this section does not apply to longshore work per-
formed in Alaska.
§ 2724. Reciprocity
(a) DEFINITION.—In this section, ‘‘practice’’ means an activity normally
performed in a foreign country during the one-year period before a vessel
arrives in the United States or the coastal waters of the United States.
(b) GENERAL.—(1) An alien crewmember performing a particular activity
of longshore work in or about a port is serving in a capacity required for
normal operation and service on a vessel under section 2305(a) of this title,
and the Attorney General shall allow an alien crewmember on a vessel to
perform a particular activity of longshore work, if—
(A) that vessel is registered in a foreign country that by law, regula-
tion, or practice does not prohibit that activity by crewmembers on
United States vessels; and
(B) nationals of a foreign country that, by law, regulation, or prac-
tice does not prohibit that activity by crewmembers on United States
vessels, hold a majority ownership interest in that vessel.
(2) The Secretary of State shall compile and annually maintain, under
section 553 of title 5, a list, by particular activity of longshore work, of for-
eign countries in which crewmembers on United States vessels are prohib-
ited by law, regulation, or practice from performing a particular activity of
longshore work.
§ 2725. Longshore work in Alaska
(a) DEFINITIONS.—In this section—
(1) ‘‘contract stevedoring companies’’ means those stevedoring com-
panies licensed to do business in Alaska that meet the requirements of
section 32 of the Longshore and Harbor Workers’ Compensation Act
(33 U.S.C. 932).
(2) ‘‘employer’’ includes any agent or representative designated by
the employer.
(b) GENERAL.—(1) An alien crewmember performing a particular activity
of longshore work at a particular location in Alaska is serving in a capacity
required for normal operation and service on a vessel under section 2305(a)
of this title if an employer of the alien crewmember files an attestation with
the Secretary of Labor at least 30 days before the date the activity will be
performed or at least 24 hours before the activity will be performed if the
124
employer shows that the employer reasonably could not have anticipated the
need to file an attestation for that location at that time.
(2) The attestation filed under paragraph (1) of this subsection shall pro-
vide evidence that—
(A) the employer will request from the parties to whom notice has
been given under clause (D)(ii) and (iii) of this paragraph United
States longshore workers who, under industry standards in Alaska, in-
cluding safety considerations, are qualified and available in sufficient
numbers to perform the activity at the particular time and location, ex-
cept that—
(i) when 2 or more contract stevedoring companies have signed
a joint collective bargaining agreement with a single labor organi-
zation described in clause (D)(i) of this paragraph, the employer
may request longshore workers from only one of those companies;
and
(ii) a request to a private dock operator for longshore workers
may be made only for longshore work to be performed at that dock
and only if the operator meets the requirements of section 32 of
the Longshore and Harbor Workers’ Compensation Act (33 U.S.C.
932);
(B) the employer will employ all those United States longshore work-
ers made available under clause (A) of this paragraph who, under in-
dustry standards in Alaska, including safety considerations, are quali-
fied and available in sufficient numbers and who are needed to perform
the longshore activity at the particular time and location;
(C) using alien crewmembers for that activity is not intended or de-
signed to influence an election of a bargaining representative for work-
ers in Alaska; and
(D) the employer has given notice of the attestation—
(i) to labor organizations recognized as exclusive bargaining rep-
resentatives of United States longshore workers within the mean-
ing of the National Labor Relations Act (29 U.S.C. 151 et seq.)
and that make, or intend to make, workers available at the par-
ticular location where the longshore work is to be performed;
(ii) to contract stevedoring companies that employ or intend to
employ United States longshore workers at the location; and
(iii) to operators of private docks at which the employer will use
longshore workers.
(3)(A) During the period that an attestation an employer files under
paragraph (1) of this subsection is valid, the employer must request and
employ United States longshore workers as provided under paragraph (2)
125
before using alien crewmembers to perform the activity specified in the at-
testation. However, an employer is not required to request United States
longshore workers from a person who has given the employer written notice
that the person does not intend to make United States longshore workers
available at the particular location where the longshore work is to be per-
formed.
(B) If a person that provided notice under subparagraph (A) of this para-
graph later gives the employer written notice that the person is prepared
to make available United States longshore workers who, under industry
standards in Alaska, including safety considerations, are qualified and avail-
able in sufficient numbers to perform the longshore activity at the particular
location where the longshore work is to be performed, the obligation of the
employer to that person under paragraph (2)(A) and (B) of this subsection
begins 60 days after the date the notice was given under this clause.
(4)(A) An employer filing an attestation under paragraph (1) of this sub-
section is not required—
(i) to hire less than a full work unit of United States longshore
workers needed to perform the longshore activity;
(ii) to provide overnight accommodations for the longshore workers
while employed; or
(iii) to provide transportation to the particular location where the
longshore activity will be performed, except where—
(I) surface transportation is available;
(II) that transportation may be accomplished safely;
(III) travel time to the vessel is not more than one-half hour
each way; and
(IV) travel distance to the vessel from the point of embarkation
is not more than 5 miles.
(B) In the case of Wide Bay, Alaska, and Klawock/Craig, Alaska, the
travel time and distance described in clause (A)(iii) of this paragraph are
extended to 45 minutes and 7.5 miles, respectively, unless the person re-
sponding to the request for longshore workers agrees to the lesser time and
distance limitations described in clause (A)(iii).
(5) Except as provided in section 2723(c)–(e) of this title, an attestation
filed under paragraph (1) of this subsection—
(A) expires at the end of the one-year period beginning on the date
specified in the attestation that the employer anticipates the longshore
work will begin; and
(B) applies to alien crewmembers arriving in the United States dur-
ing that period if the owner, agent, master, commanding officer, or
consignee states in each list provided under section 2701 of this title
126
that the employer continues to comply with the conditions in the attes-
tation.
(c) APPLICATION OF SECTION 2723.—(1) Except as provided in para-
graph (2) of this subsection, section 2723(b)(3)–(f)(2) of this title applies
to an attestation filed under subsection (b)(1) of this section.
(2) Section 2723 of this title applies to the use of alien crewmembers to
perform longshore work in Alaska involving the use of an automated self-
loading conveyor belt or vacuum-actuated system on a vessel.
(d) REGULATIONS.—The Secretary shall prescribe regulations necessary
to carry out this section.
CHAPTER 29—FACILITIES EMPLOYING REGISTERED
NURSES
2901.
Definition.
2902.
Attestation requirements.
2903.
State plans.
2904.
Public availability of information.
2905.
Complaints, investigations, and penalties.
§ 2901. Definition
In this chapter, ‘‘facility’’ includes an employer that employs registered
nurses in a home setting.
§ 2902. Attestation requirements
(a) GENERAL.—Except as provided in subsection (b) of this section, a fa-
cility seeking to employ a nonimmigrant registered nurse under section
2325 of this title must file with the Secretary of Labor an attestation stat-
ing the following:
(1) A substantial disruption in the delivery of health care services
of the facility would occur through no fault of the facility without the
services of a nonimmigrant registered nurse.
(2) Employment of a nonimmigrant registered nurse will not ad-
versely affect the wages and working conditions of other registered
nurses similarly employed.
(3) A nonimmigrant registered nurse employed by the facility will be
paid at the wage rate paid for other registered nurses similarly em-
ployed by the facility.
(4) The facility—
(A) has taken and is taking timely and significant steps to re-
cruit and retain sufficient registered nurses who are citizens of the
United States or immigrants authorized to perform nursing serv-
ices, to remove as quickly as reasonably possible the dependence
of the facility on nonimmigrant registered nurses; or
(B) is subject to a state plan for the recruitment and retention
of nurses approved under section 2903 of this title.
127
(5) There is no strike or lockout in the course of a labor dispute,
and the employment of nonimmigrant registered nurses is not intended
or designed to influence an election for a bargaining representative for
registered nurses of the facility.
(6) At the time of filing the petition under section 2325(c) of this
title, the facility has given notice of the filing to the bargaining rep-
resentative of the registered nurses employed by the facility or, if there
is no bargaining representative, to the registered nurses employed by
the facility by posting the notice in conspicuous locations.
(b) WAIVERS.—For a nonimmigrant registered nurse performing services
at a worksite (except at the employer’s worksite or at a worksite controlled
by the employer) and for whom the employer has filed an attestation under
subsection (a) of this section, the Secretary may waive the requirement to
file an attestation for the worksite as may be appropriate—
(1) to avoid duplicative attestations;
(2) in temporary, emergency situations;
(3) for information the attestor does not know; or
(4) for other good cause.
(c) FAULT IF FACILITY HAS LAID OFF NURSES.—A facility does not
meet subsection (a)(1) of this section if the facility has laid off registered
nurses within the prior year. However, a facility that lays off a registered
nurse (except a staff nurse) meets subsection (a)(1) if the facility has at-
tested that it will not replace the nurse with a nonimmigrant registered
nurse described in section 2325(b) of this title (either through promotion
or otherwise) for one year after the date of the layoff.
(d) SIGNIFICANT STEPS TO RECRUIT AND RETAIN NURSES.—(1) Each
of the following is a significant step reasonably designed to recruit and re-
tain registered nurses meeting the requirement of subsection (a)(4)(A) of
this section:
(A) operating a training program for registered nurses at the facility
or financing (or providing participation in) a training program for reg-
istered nurses elsewhere.
(B) providing career development programs and other methods of fa-
cilitating health care workers to become registered nurses.
(C) paying registered nurses at a rate higher than that currently
being paid to registered nurses similarly employed in the geographic
area.
(D) providing adequate support services to free registered nurses
from administrative and other non-nursing duties.
(E) providing reasonable opportunities for meaningful salary ad-
vancement by registered nurses.
128
(2) Paragraph (1) of this subsection is not an exclusive list of the steps
that may be taken to meet the requirement of subsection (a)(4)(A) of this
section. A facility is not required to take more than one step if the facility
can demonstrate that taking an additional step is not reasonable.
(e) EFFECTIVENESS OF ATTESTATION.—(1) Subject to section 2905 of
this title, an attestation under subsection (a) of this section—
(A) expires at the end of the one-year period beginning on the date
the attestation is filed with the Secretary; and
(B) applies to petitions filed during that one-year period if the facil-
ity states in each petition filed under section 2325(c) of this title that
it continues to comply with the conditions in the attestation.
(2) A facility may file a single petition to meet the requirements of this
section for more than one registered nurse.
§ 2903. State plans
The Secretary of Labor shall provide for a procedure under which a State
may submit to the Secretary of Labor a plan for the recruitment and reten-
tion of citizens of the United States and immigrants authorized to perform
nursing services as registered nurses in facilities in the State. A plan may
include counseling and educating health workers and other individuals about
employment opportunities available to registered nurses. Annually in con-
sultation with the Secretary of Health and Human Services, the Secretary
of Labor shall provide for approving or disapproving the state plan as pro-
vided in section 2902(a)(4)(B) of this title. A plan may be approved in re-
gard to a facility only if the plan provides for taking significant steps de-
scribed in section 2902(a)(4)(A) of this title to recruit and retain registered
nurses at that facility.
§ 2904. Public availability of information
The Secretary of Labor shall compile and make available for public exam-
ination in a timely manner in the District of Columbia—
(1) a list of facilities that have filed petitions to employ non-
immigrant registered nurses described in section 2325(b) of this title;
and
(2) for each facility, a copy of the petitions, attestations, and accom-
panying documentation filed by each facility.
§ 2905. Complaints, investigations, and penalties
(a) COMPLAINTS
AND INVESTIGATIONS.—(1) The Secretary of Labor
shall establish a procedure for receiving, investigating, and disposing of
complaints filed about a facility’s failure to satisfy a condition attested to,
or a facility’s misrepresentation of a material fact, in an attestation.
(2) Any person aggrieved by a facility’s failure to satisfy a condition at-
tested to, or a facility’s misrepresentation of a material fact, in an attesta-
129
tion under section 2902(a) of this title, including a bargaining representa-
tive, association the Secretary decides is appropriate, or other person the
Secretary decides by regulation is aggrieved, may file a complaint with the
Secretary. The Secretary shall conduct an investigation if there is reason-
able cause to believe that the facility does not meet a condition attested to.
(3) Not later than 180 days after a complaint is filed, the Secretary shall
decide whether a basis exists to make a finding described in subsection (b)
of this section. If the Secretary decides that a basis exists, the Secretary
shall give notice of that decision to the interested parties and an opportunity
for a hearing on the complaint not later than 60 days after making the deci-
sion.
(b) FINDINGS AND PENALTIES.—(1) If the Secretary finds, after notice
and an opportunity for a hearing, that a facility has failed to satisfy a con-
dition attested to or has misrepresented a material fact in an attestation,
the Secretary—
(A) shall notify the Attorney General of the finding;
(B) may impose other administrative remedies, including a civil pen-
alty of not more than $1,000 for each violation; and
(C) if the facility has not paid the prevailing wage as attested to
under section 2902(a)(3) of this title, shall order the facility to pay an
amount of back pay necessary to comply with section 2902(a)(3).
(2) For at least one year after receiving notice under paragraph (1)(A)
of this subsection, the Attorney General may not approve a petition filed
under subsection 2325(c) of this title by that facility for the employment
of a nonimmigrant registered nurse.
PART B—IMMIGRANTS
CHAPTER 41—NUMERICAL LIMITATIONS
Sec.
4101.
General requirements.
4102.
Annual worldwide numerical limitations.
4103.
Visa allocation for family-sponsored immigrants.
4104.
Visa allocation for employment-based immigrants.
4105.
Visa allocation for diversity immigrants.
4106.
Availability of visas for special immigrants having honorable military service.
4107.
Status of spouses and children.
4108.
Estimating number of visas to be issued.
4109.
Pilot program.
4110.
Numerical limitations on individual foreign countries.
4111.
Charging immigrants to foreign countries.
4112.
Burden of proof.
§ 4101. General requirements
Except for aliens described in section 4102(d) of this title, an alien may
be issued an immigrant visa or otherwise acquire the status of an alien law-
fully admitted for permanent residence only if—
130
(1)(A) the alien is a family-sponsored immigrant described in section
4103(b)–(e) of this title or admitted under section 4311(a)(1) of this
title because a visa previously was issued to the accompanying parent
under section 4103(b)–(e); and
(B) the numerical limitations of section 4102(a)(1) of this title are
not exceeded;
(2)(A) the alien is an employment-based immigrant described in sec-
tion 4104(b)–(f) of this title or admitted under section 4311(a)(1) of
this title because a visa previously was issued to the accompanying par-
ent under section 4104(b)–(f); and
(B) the numerical limitations of section 4102(b)(1) of this title are
not exceeded; or
(3)(A) the alien is a diversity immigrant described in section 4105(c)
and (h) of this title or admitted under section 4311(a)(1) of this title
because a visa previously was issued to the accompanying parent under
section 4105(c) and (h); and
(B) the numerical limitations of section 4102(c)(1) of this title are
not exceeded.
§ 4102. Annual worldwide numerical limitations
(a) FAMILY-SPONSORED IMMIGRANTS.—(1) The worldwide numerical lim-
itation for family-sponsored immigrants for a fiscal year is the greater of—
(A)(i) 480,000; minus
(ii) the sum of—
(I) the number of aliens described in subsection (d)(6)–(8) of
this section issued immigrant visas or who otherwise acquire the
status of an alien lawfully admitted for permanent residence in the
prior fiscal year; and
(II) for fiscal years beginning after September 30, 1998, the
number of aliens paroled into the United States under section
6121 of this title in the 2d prior fiscal year who do not depart
from the United States (without advance parole) within 365 days
and who do not acquire the status of an alien lawfully admitted
for permanent residence in the 2 prior fiscal years or acquire that
status in those years under a provision of law (except subsection
(d) of this section) that exempts the adjustment from the numeri-
cal limitation on the worldwide level of immigration under this sec-
tion; plus
(iii) any difference between the maximum number of employment-
based immigrant visas that could have been issued and the number
that were issued during the prior fiscal year; or
(B) 226,000.
131
(2) In each of the first 3 quarters of a fiscal year, the number of aliens
issued visas and otherwise becoming aliens lawfully admitted for permanent
residence as family-sponsored immigrants may not be more than 27 percent
of the numerical limitation computed under paragraph (1) of this subsection
for that fiscal year.
(3) An alien paroled into the United States under section 6121 of this
title in the 2d prior fiscal year who does not depart from the United States
(without advance parole) within 365 days and who does not acquire the sta-
tus of an alien lawfully admitted for permanent residence in the 2 prior fis-
cal years but who subsequently is admitted as an alien lawfully admitted
for permanent residence may not again be considered for purposes of para-
graph (1) of this subsection.
(b) EMPLOYMENT-BASED IMMIGRANTS.—(1) The worldwide numerical
limitation for employment-based immigrants for a fiscal year is—
(A) not more than 140,000; plus
(B) any difference between the maximum number of family-spon-
sored immigrant visas that could have been issued and the number that
were issued during the prior fiscal year.
(2) In each of the first 3 quarters of a fiscal year, the number of aliens
issued visas and otherwise becoming aliens lawfully admitted for permanent
residence as employment-based immigrants may not be more than 27 per-
cent of the numerical limitation computed under paragraph (1) of this sub-
section for that fiscal year.
(c) DIVERSITY IMMIGRANTS.—(1) The worldwide numerical limitation for
diversity immigrants for a fiscal year is 55,000.
(2) In each of the first 3 quarters of a fiscal year, the number of aliens
issued visas and otherwise becoming aliens lawfully admitted for permanent
residence as diversity immigrants may not be more than 27 percent of the
numerical limitation computed under paragraph (1) of this subsection for
that fiscal year.
(d) NONAPPLICATION.—The numerical limitations of this section do not
apply to—
(1) a special immigrant as defined in section 133(a)(1) or (2) of this
title;
(2) an alien admitted under section 5105 of this title or whose status
is adjusted under section 5107 of this title;
(3) an alien who becomes lawfully admitted for permanent residence
under chapter 93 of this title or section 210 of the Immigration and
Nationality Act;
(4) an alien whose removal is canceled under section 6721(a) of this
title;
132
(5) an alien whose status is adjusted to that of an alien lawfully ad-
mitted for permanent residence under section 9104(a) of this title;
(6) an immediate relative;
(7) an alien admitted under section 4311(a)(1) of this title because
the accompanying parent is an immediate relative previously issued a
visa; and
(8) an alien born to an alien lawfully admitted for permanent resi-
dence during a temporary visit outside the United States.
§ 4103. Visa allocation for family-sponsored immigrants
(a) GENERAL.—Aliens subject to the worldwide numerical limitation of
section 4102(a)(1) of this title for qualified family-sponsored immigrants
shall be allocated visas each fiscal year as provided in this section.
(b) UNMARRIED SONS AND DAUGHTERS OF CITIZENS.—Not more than
23,400 visas, plus visas not required under subsection (e) of this section,
shall be made available to unmarried sons and unmarried daughters of citi-
zens of the United States.
(c) FAMILIES OF ALIENS LAWFULLY ADMITTED FOR PERMANENT RESI-
DENCE.—(1) Not more than 114,200 visas, plus the number by which the
worldwide numerical limitation is more than 226,000, plus visas not re-
quired under subsection (b) of this section, shall be made available to—
(A) spouses and children of aliens lawfully admitted for permanent
residence; and
(B) unmarried sons and unmarried daughters (who are no longer
children) of aliens lawfully admitted for permanent residence.
(2) At least 77 percent of visas made available under this subsection shall
be made available to those spouses and children.
(d) MARRIED SONS AND DAUGHTERS OF CITIZENS.—Not more than
23,400 visas, plus visas not required under subsections (b) and (c) of this
section, shall be made available to married sons and married daughters of
citizens of the United States.
(e) BROTHERS AND SISTERS OF CITIZENS.—Not more than 65,000 visas,
plus visas not required under subsections (b)–(d) of this section, shall be
made available to brothers and sisters of citizens of the United States if
the citizens are at least 21 years of age.
§ 4104. Visa allocation for employment-based immigrants
(a) GENERAL.—Aliens subject to the worldwide numerical limitation of
section 4102(b)(1) of this title for qualified employment-based immigrants
shall be allocated visas each fiscal year as provided in this section.
(b) PRIORITY WORKERS.—(1) A number of visas equal to not more than
28.6 percent of the worldwide numerical limitation of section 4102(b)(1) of
133
this title, plus visas not required under subsections (e) and (f) of this sec-
tion, shall be made available to the following aliens:
(A) A qualified immigrant—
(i) having extraordinary ability in the sciences, arts, education,
business, or athletics that has been demonstrated by sustained na-
tional or international acclaim;
(ii) whose achievements have been recognized in the field
through extensive documentation;
(iii) who is coming to the United States to continue work in the
area of extraordinary ability; and
(iv) whose entry will benefit the United States substantially in
the future.
(B) A qualified immigrant—
(i) recognized internationally as outstanding in a specific aca-
demic area;
(ii) with at least 3 years of teaching or research experience in
the academic area; and
(iii) who is coming to the United States for a tenured (or ten-
ure-track) position in a university or institution of higher edu-
cation to teach in the academic area, for a comparable position
with a university or institute of higher education to conduct re-
search in the area, or for a comparable position to conduct re-
search in the area with a department, division, or institute of a
private employer that employs at least 3 individuals full-time in
research activities and has achieved documented accomplishments
in an academic field.
(C) A qualified immigrant—
(i) who, in the 3 years prior to the application for classification
and admission to the United States under this paragraph, has
been employed for at least one year by a firm, corporation, or
other legal entity or an affiliate or subsidiary of the firm, corpora-
tion, or entity; and
(ii) who is coming to the United States to continue to provide
services to the same employer, or an affiliate or subsidiary of the
employer, in a managerial or executive capacity.
(2) In applying paragraph (1)(C) of this subsection, a partnership or
similar organization organized outside the United States to provide account-
ing services is deemed to be an affiliate of a partnership organized in the
United States to provide accounting services if—
(A) the partnership or similar organization organized outside the
United States markets its accounting services under an internationally
134
recognized name under an agreement with a worldwide coordinating or-
ganization owned and controlled by the member accounting firms of
which the United States partnership is also a member; and
(B) the United States partnership markets its accounting services
under the same internationally recognized name under an agreement
with the worldwide coordinating organization.
(c) MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES OR
ALIENS OF EXCEPTIONAL ABILITY.—(1) A number of visas equal to not
more than 28.6 percent of the worldwide numerical limitation of section
4102(b)(1) of this title, plus visas not required under subsection (b) of this
section, shall be made available to qualified immigrants—
(A) who are members of the professions holding advanced degrees or
their equivalent or who because of their exceptional ability in the
sciences, arts, or business will benefit substantially the economy, cul-
tural or educational interests, or welfare of the United States in the
future; and
(B) whose services in the sciences, arts, professions, or business are
sought by an employer in the United States.
(2) When the Attorney General considers it to be in the interest of the
United States, the Attorney General may waive the requirement of para-
graph (1) of this subsection that an alien’s services in the sciences, arts,
professions, or business be sought by an employer in the United States.
(3) Possession of a degree, diploma, certificate, or similar award from an
institution of learning, a license to practice, or certification for a profession
or occupation is not sufficient evidence by itself under paragraph (1) of this
subsection that an immigrant has exceptional ability.
(d) SKILLED WORKERS, PROFESSIONALS, AND OTHER WORKERS.—(1)
Except as provided in paragraph (2) of this subsection, a number of visas
equal to not more than 28.6 percent of the worldwide numerical limitation
of section 4102(b)(1) of this title, plus visas not required under subsections
(b) and (c) of this section, shall be made available to the following aliens
not described in subsection (c)(1) of this section:
(A) A qualified immigrant who is capable, at the time a petition is
filed for classification under this subsection, of performing skilled labor
requiring at least 2 years training or experience, that is not temporary
or seasonal, and for which qualified workers are not available in the
United States.
(B) A qualified immigrant who holds a baccalaureate degree and is
a member of a profession.
(C) A qualified immigrant capable, when petitioning for classification
under this subsection, of performing unskilled labor that is not tem-
135
porary or seasonal and for which qualified workers are not available in
the United States.
(2) Not more than 10,000 of the visas made available under this sub-
section in a fiscal year are available for immigrants described in paragraph
(1)(C) of this subsection.
(3) An alien may be issued an immigrant visa under this subsection only
if the consular officer has received the decision and certification of the Sec-
retary of Labor under subsection (g)(2) of this section.
(e) CERTAIN SPECIAL IMMIGRANTS.—A number of visas equal to not
more than 7.1 percent of the worldwide numerical limitation of section
4102(b)(1) of this title shall be made available to qualified special immi-
grants as defined in section 133(a)(3)–(13) of this title, except that not
more than 5,000 of those visas may be allocated in a fiscal year to special
immigrants as defined in section 133(a)(3)(A)(ii)(II) and (III) of this title.
(f) EMPLOYMENT CREATION.—(1) In this subsection—
(A) ‘‘targeted employment area’’ means, at the time of investment,
a rural area or an area that has experienced unemployment that is at
least 150 percent of the national average.
(B) ‘‘rural area’’ means an area not in a metropolitan statistical
area or not in the outer boundary of a city or town having a popu-
lation, based on the latest United States decennial census, of at least
20,000.
(2) A number of visas equal to not more than 7.1 percent of the world-
wide numerical limitation of section 4102(b)(1) of this title shall be made
available to qualified immigrants is coming to the United States to engage
in a new commercial enterprise—
(A) that the alien has established;
(B) in which the alien has invested after November 29, 1990, or is
actively in the process of investing, at least $1,000,000; and
(C) that will benefit the United States economy and create full-time
employment for at least 10 United States citizens, aliens lawfully ad-
mitted for permanent residence, or other immigrants lawfully author-
ized to be employed in the United States, except the qualified immi-
grant and the qualified immigrant’s spouse, sons, and daughters.
(3) At least 3,000 of the visas allocated under paragraph (2) of this sub-
section in each fiscal year shall be reserved for qualified immigrants who
establish a new commercial enterprise described in paragraph (2) that will
create employment in a targeted employment area.
(4)(A) In consultation with the Secretaries of Labor and State, the Attor-
ney General may prescribe regulations increasing the amount specified by
paragraph (2)(B) of this subsection.
136
(B) For an investment made in a targeted employment area, the Attorney
General may specify that the amount of capital required under paragraph
(2)(B) of this subsection be less than, but at least 50 percent of, the
amount specified by paragraph (2)(B).
(C) For an investment made in a metropolitan statistical area that at the
time of investment is not a targeted employment area and has an unemploy-
ment rate significantly below the national average, the Attorney General
may specify that the amount of capital required under paragraph (2)(B) of
this subsection be more than, but not more than 3 times, the amount speci-
fied in paragraph (2)(B).
(g) ADDITIONAL
REQUIREMENTS
FOR
EMPLOYMENT-BASED
IMMI-
GRANTS.—(1) An alien applying for a visa under subsection (c) or (d) of
this section who is a graduate of a medical school not accredited by an en-
tity approved by the Secretary of Education and who is coming to the Unit-
ed States principally to perform services as a member of the medical profes-
sion may be issued the visa only if the alien—
(A) has passed parts I and II of the National Board of Medical Ex-
aminers Examination or an examination the Secretary of Health and
Human Services decides is equivalent, or on January 9, 1978, was fully
and permanently licensed to practice medicine in a State and was prac-
ticing medicine in a State on that date; and
(B) is competent in oral and written English.
(2)(A) An alien applying for a visa under subsection (c) or (d) of this
section to perform skilled or unskilled labor may be issued the visa only if
the Secretary of Labor decides and certifies to the Secretary of State and
the Attorney General that—
(i) there are not enough workers who are able, willing, qualified (or
equally qualified if the alien is a member of the teaching profession or
has exceptional ability in the sciences or arts), and available when the
alien applies for the visa and admission and at the place where the
alien is to perform that labor; and
(ii) employment of the alien will not affect adversely the wages and
working conditions of similarly employed workers in the United States.
(B)(i) For purposes of this subparagraph, ‘‘professional athlete’’ means
an individual who is employed as an athlete by a team that is a member
of an association of at least 6 professional sports teams whose total com-
bined revenues exceed $10,000,000 per year, if the association governs the
conduct of its members and regulates the contests and exhibitions in which
its member teams regularly engage, or by a minor league team that is affili-
ated with such an association.
137
(ii) A certification made under paragraph (2)(A) of this subsection for
a professional athlete remains valid with respect to the athlete after the ath-
lete changes employers if the new employer is a team in the same sport as
the team which employed the athlete when the athlete first applied for the
certification.
(C) Before making a decision and certification under paragraph (2)(A)
of this subsection, the Secretary of Labor shall provide that—
(i) a certification may be made only if the employer, when filing the
application, has provided notice of the filing to the bargaining rep-
resentative of the employer’s employees in the occupational classifica-
tion and area for which aliens are sought or, if there is no bargaining
representative, to employees employed at the facility through posting at
conspicuous locations; and
(ii) any person may submit documentary evidence related to the ap-
plication, including information on available workers, wages and work-
ing conditions, and the employer’s failure to meet conditions of employ-
ing alien workers and co-workers.
(3) An alien is coming to the United States to perform labor as a health-
care worker (except a physician) is inadmissible unless the alien presents
to the consular officer, or, in the case of an adjustment of status, the Attor-
ney General, a certificate from the Commission on Graduates of Foreign
Nursing Schools, or a certificate from an equivalent independent
credentialing organization approved by the Attorney General in consultation
with the Secretary of Health and Human Services, verifying that—
(A) the alien’s education, training, license, and experience—
(i) meet all applicable statutory and regulatory requirements for
entry into the United States under the classification specified in
the application;
(ii) are comparable to that required for an American health-care
worker of the same type; and
(iii) are authentic and, in the case of a license, unencumbered;
(B) the alien has the level of competence in oral and written English
considered by the Secretary of Health and Human Services, in con-
sultation with the Secretary of Education, to be appropriate for health
care work of the kind in which the alien will be engaged, as shown by
an appropriate score on one or more nationally recognized, commer-
cially available, standardized assessments of the applicant’s ability to
speak and write; and
(C) if a majority of States licensing the profession in which the alien
intends to work recognize a test predicting the success on the profes-
138
sion’s licensing or certification examination, the alien has passed the
test or examination.
(4) For purposes of paragraph (3) of this subsection, determination of
the standardized tests required and of the minimum scores that are appro-
priate are within the sole discretion of the Secretary of Health and Human
Services and are not subject to further administrative or judicial review.
§ 4105. Visa allocation for diversity immigrants
(a) DEFINITIONS.—In this section—
(1) ‘‘high-admission foreign country’’ means a foreign country for
which the number determined under subsection (c) of this section is
more than 50,000.
(2) ‘‘high-admission region’’ means a region for which the total of
the numbers determined under subsection (c) of this section for foreign
countries in the region is more than one-sixth of the total of the num-
bers for all foreign countries.
(3) ‘‘low-admission foreign country’’ means a foreign country that is
not a high-admission foreign country.
(4) ‘‘low-admission region’’ means a region that is not a high-admis-
sion region.
(5) Northern Ireland is deemed to be a separate foreign country.
(6) an overseas dependent area of a foreign country is deemed to be
part of the foreign country.
(7) the area in each of the following is a separate region:
(A) Africa.
(B) Asia.
(C) Europe.
(D) North America, except Mexico.
(E) Oceania.
(F) South America, Mexico, Central America, and the Carib-
bean.
(b) GENERAL.—Aliens subject to the worldwide numerical limitations of
section 4102(c)(1) of this title for qualified diversity immigrants shall be al-
located visas for each fiscal year as provided in this section.
(c) DETERMINATION OF NUMBERS OF CERTAIN ALIENS.—For the most
recent prior 5-year period for which information is available, the Attorney
General shall determine the total number of aliens who are natives of each
foreign country and who—
(1) were admitted or otherwise acquired the status of an alien law-
fully admitted for permanent residence (except under this section); and
(2) were subject to the numerical limitations for family-sponsored
and employment-based immigrants under sections 4103 and 4104 of
139
this title or were admitted or otherwise acquired the status of an alien
lawfully admitted for permanent residence as an alien described in sec-
tion 4102(d)(6)–(8) of this title.
(d) IDENTIFICATION.—The Attorney General shall identify each high-ad-
mission foreign country and region and each low-admission foreign country
and region.
(e) PERCENTAGE AND RATIO DETERMINATIONS.—The Attorney General
shall determine—
(1) the percentage of the total of the number determined under sub-
section (c) of this section that applies to foreign countries in high-ad-
mission regions;
(2) based on available estimates for each region, the total population
of each region, excluding the population of any high-admission foreign
country;
(3) for each low-admission region, the ratio of the population of the
region determined under clause (2) of this subsection to the total popu-
lation determined under clause (2) for all low-admission regions; and
(4) for each high-admission region, the ratio of the population of the
region determined under clause (2) of this subsection to the total popu-
lation determined under clause (2) for all high-admission regions.
(f) AVAILABILITY OF VISAS.—(1) The percentage of visas made available
under this section to natives of a high-admission foreign country is 0.
(2) Except as provided in subsection (g) of this section, the percentage
of visas made available under this section to natives (except natives of a
high-admission foreign country) in a low-admission region is the product
of—
(A) the percentage determined under subsection (e)(1) of this sec-
tion; multiplied by
(B) the population ratio for the region determined under subsection
(e)(3) of this section.
(3) Except as provided in subsection (g) of this section, the percentage
of visas made available under this section to natives (except natives of a
high-admission foreign country) in a high-admission region is the product
of—
(A) 100 percent minus the percentage determined under subsection
(e)(1) of this section; multiplied by
(B) the population ratio for the region determined under subsection
(e)(4) of this section.
(g) REDISTRIBUTION OF VISAS AND LIMITATION.—(1) Except as pro-
vided in paragraph (2) of this subsection, if the Secretary of State estimates
that the number of immigrant visas to be issued for a fiscal year to natives
140
in a region under this section will be less than the number of immigrant
visas made available for the fiscal year to those natives under this section,
the excess visa numbers shall be made available to natives (except natives
of a high-admission foreign country) of the other regions in proportion to
the percentages specified in subsection (f)(2) and (3) of this section.
(2) The percentage of visas made available under this section for a fiscal
year to natives of a single foreign country may not be more than 7 percent
of the total number of visas made available under this section for the fiscal
year.
(h) REQUIREMENT OF EDUCATION OR WORK EXPERIENCE.—An alien is
eligible for a visa under this section only if the alien—
(1) has at least a high school education or its equivalent; or
(2) within the 5-year period preceding the date of applying for a visa
has at least 2 years of work experience in an occupation requiring at
least 2 years of training or experience.
(i) MAINTAINING INFORMATION.—The Secretary shall maintain informa-
tion on the age, occupation, education level, and other relevant characteris-
tics of immigrants issued visas under this section.
(j) FEES.—(1) The Secretary may establish a fee to be paid by each ap-
plicant for an immigrant visa under this section. The fee may be set at a
level that will ensure recovery of the cost to the Department of State of allo-
cating the visas, including the cost of processing all applications under this
section.
(2) Fees collected under this section—
(A) shall be used for providing consular services;
(B) shall be deposited as an offsetting collection to any Department
of State appropriation; and
(C) remain available until expended.
(3) Sections 1726–1728 of the Revised Statutes (22 U.S.C. 4212–4214)
do not apply to fees collected under this subsection.
§ 4106. Availability of visas for special immigrants having
honorable military service
(a) NONAPPLICATION OF NUMERICAL LIMITATIONS.— Except as pro-
vided in subsection (b) of this section, the numerical limitations of sections
4104 and 4110(a) and (b) of this title do not apply to immigrant visas
made available to special immigrants as defined in section 133(a)(13) of
this title.
(b) NUMBER OF AVAILABLE VISAS.—The number of visas made available
in a fiscal year—
(1) under subsections (b), (c), and (d) of section 4104 of this title
shall each be reduced by one-third of the number of visas allocated in
141
the prior fiscal year to special immigrants as defined in section
133(a)(13) of this title;
(2) to natives of a foreign country under section 4110(a) and (b) of
this title shall be reduced by the number of visas allocated in the prior
fiscal year to special immigrants as defined in section 133(a)(13) of
this title who are natives of the foreign country; and
(3) under subsections (b), (c), and (d) of section 4104 of this title
for a foreign country subject to section 4110(c) of this title in that fis-
cal year and the prior fiscal year shall be reduced by one-third of the
number of visas allocated in the prior fiscal year to special immigrants
as defined in section 133(a)(13) of this title who are natives of the for-
eign country.
§ 4107. Status of spouses and children
The spouse or child (as defined in section 108(a)(1)–(5) of this title) ac-
companying or following to join an alien who is in a class described in sec-
tion 4103, 4104, or 4105 of this title is entitled to the same classification
and to have the same priority date as the alien if the spouse or child other-
wise is not entitled to immigrant status and the immediate issuance of a
visa under section 4103, 4104, or 4105.
§ 4108. Estimating number of visas to be issued
In carrying out sections 4103–4107 and 4313(a) and (b) of this title, the
Secretary of State may make estimates of the anticipated number of immi-
grant visas to be issued during any quarter of a fiscal year under each class
of sections 4103–4105 of this title. The Secretary may rely on those esti-
mates in authorizing the issuance of those visas.
§ 4109. Pilot program
(a) ESTABLISHMENT OF PROGRAM AND ALLOCATION OF VISAS.—In the
fiscal year beginning October 1, 1997, the Secretary of State, with the At-
torney General, shall set aside 300 visas from the visas otherwise available
under section 4104(f) of this title for a pilot program to carry out section
4104(f). The program shall include a regional center in the United States
for promoting economic growth, including increased export sales, improved
regional productivity, job creation, and increased domestic capital invest-
ment. The visas are for aliens eligible for admission under section 4104(f)
and spouses and children eligible under this title to accompany or follow to
join the alien.
(b) DETERMINATION OF NUMBER OF JOBS CREATED.—In establishing
compliance with section 4104(f)(2)(C) of this title and notwithstanding the
requirements of section 204.6 of title 8, Code of Federal Regulations, the
Attorney General shall allow aliens admitted under the program to establish
reasonable methodologies for determining the number of jobs created by the
142
program, including jobs estimated to have been created indirectly through
revenue produced from increased exports resulting from the program.
§ 4110. Numerical limitations on individual foreign coun-
tries
(a) TOTAL NUMBER OF VISAS AVAILABLE IN A FISCAL YEAR.—(1) Ex-
cept as provided in this section, not more than 7 percent of the total num-
ber of immigrant visas made available under sections 4103 and 4104 of this
title in a fiscal year are made available to natives of any single foreign coun-
try, and not more than 2 percent of the total number are made available
to natives of any single dependent area.
(2) If, because of the application of paragraph (1) of this subsection to
at least one foreign country or dependent area, the total number of visas
made available under sections 4103 and 4104 of this title for a calendar
quarter is more than the number of qualified immigrants who otherwise may
be issued a visa, paragraph (1) does not apply to visas made available to
any such foreign country or dependent area during the remainder of the cal-
endar quarter.
(3) Except for the United States and American Samoa, an independent
country, self-governing dominion, or territory under the international trust-
eeship system of the United Nations is a foreign country under this sub-
section when approved by the Secretary of State.
(4) Approval is deemed to have been given under paragraph (3) of this
subsection to—
(A) Taiwan (China); and
(B) Hong Kong.
(5) The Secretary shall specify the foreign country to which any other
inhabited land is to be attributed. The Secretary shall issue appropriate in-
structions to diplomatic and consular offices when the territorial limits of
a foreign country change and the Secretary recognizes the change.
(b) SPECIAL RULES FOR SPOUSES AND CHILDREN OF ALIENS LAW-
FULLY ADMITTED FOR PERMANENT RESIDENCE.—(1) Of the visa numbers
available under section 4103(c) of this title in a fiscal year to immigrants
described in section 4103(c)(1)(A) of this title—
(A) 75 percent of the 77 percent of the total number of visas avail-
able under section 4103(c) of this title to those immigrants shall be
issued without regard to the numerical limitation established under
subsection (a)(1) of this section; and
(B) if a foreign country or dependent area is subject to subsection
(c) of this section, the remaining 25 percent of the 77 percent shall
be made available to natives of that country or area only to the extent
that the total number of visas issued under subparagraph (A) of this
143
paragraph to those immigrants is less than 77 percent of the maximum
number of visas available under subsection (c)(1)(B) of this section to
immigrants described in section 4103(c) of this title who are natives
of that country or area.
(2) For a foreign country or dependent area to which subsection (c) of
this section applies—
(A) the number of immigrant visas that may be made available
under section 4103(c) of this title to natives of the country or area who
are described in section 4103(c)(1)(B) of this title may not be more
than the greater of—
(i) 23 percent of the maximum number of visas available con-
sistent with subsection (c) of this section to immigrants described
in section 4103(c) of this title who are natives of the country or
area; or
(ii) the number, if any, by which the maximum number of visas
available under subsection (c)(1)(B) of this section to immigrants
described in section 4103(c) of this title who are natives of the
country or area is more than the number of visas issued to immi-
grants described in section 4103(c)(1)(A) of this title; and
(B) if the total number of visas issued under section 4103(c) of this
title is more than the maximum number of visas available consistent
with subsection (c) of this section to immigrants described in section
4103(c) who are natives of the country or area, all visas are deemed
to have been required for the preferences specified in section 4103(b)
and (c) of this title when applying section 4103(d) and (e) of this title
under subsection (c)(1)(B) of this section.
(c) ALLOCATION WHEN NUMBER
OF VISAS MADE AVAILABLE
TO
A
COUNTRY EXCEEDS NUMERICAL LIMITATION.—(1) If it appears that the
total number of immigrant visas made available under sections 4103 and
4104 of this title to natives of a foreign country or dependent area will be
more than the applicable numerical limitation established under subsection
(a)(1) of this section in a fiscal year, visa numbers for natives of that coun-
try or area shall be allocated under sections 4103 and 4104 (to the extent
practicable and otherwise consistent with this section and sections 4103 and
4104) so that—
(A) the ratio of the visa numbers made available under section 4103
of this title to the visa numbers made available under section 4104 of
this title equals the ratio of the worldwide numerical limitations of sec-
tion 4102(a)(1) of this title to the worldwide numerical limitation
under section 4102(b)(1) of this title;
144
(B) except as provided in paragraphs (3) and (4) of this subsection,
the proportion of the visa numbers allocated under each of subsections
(b), (c), (d), and (e) of section 4103 of this title equals the ratio of
the total number of visas available under each of those subsections to
the total number of visas available under section 4103; and
(C) the proportion of the visa numbers allocated under each of sub-
sections (b), (c), (d), (e), and (f) of section 4104 of this title equals
the ratio of the total number of visas available under each of those sub-
sections to the total number of visas available under section 4104.
(2) Paragraph (1) of this subsection does not limit the number of visas
that may be issued—
(A) to natives of a foreign country or dependent area under section
4103 of this title if there is insufficient demand for visas for those na-
tives under section 4104 of this title;
(B) to natives of a foreign country or dependent area under section
4104 of this title if there is insufficient demand for visas for those na-
tives under section 4103 of this title; or
(C) under subsection (b)(1)(A) of this section.
§ 4111. Charging immigrants to foreign countries
An immigrant is chargeable to the foreign country in which the immi-
grant was born except in the following circumstances:
(1) When an alien child is accompanied by or following to join an
alien parent of the child, the child may be charged to the foreign coun-
try of either parent if—
(A) the parent has received or qualifies for an immigrant visa;
(B) necessary to prevent the separation of the child from the
parent; and
(C) immigration charged to the foreign country to which the
parent has been or would be chargeable has not reached the nu-
merical limitation established by section 4110(a)(1) of this title.
(2) When an alien is chargeable to a foreign country different from
that of the spouse of the alien, the alien may be charged to the foreign
country of the spouse the alien is accompanying or following to join
if—
(A) the spouse has received or qualifies for an immigrant visa;
(B) necessary to prevent the separation of the alien and spouse;
and
(C) immigration charged to the foreign country to which the
spouse has been or would be chargeable has not reached the nu-
merical limitation established by section 4110(a)(1) of this title.
145
(3) An alien born in the United States is deemed to have been born
in the foreign country of which the alien is a citizen or subject. If the
alien is not a citizen or subject of a foreign country, the alien is
deemed to have been born in the last foreign country in which the con-
sular officer decides that the alien resided.
(4) An alien born in a foreign country in which neither parent of
the alien was born and in which neither parent resided at the time of
the birth of the alien may be charged to the foreign country of either
parent.
(5) An alien born in a dependent area of a foreign country, except
an alien described in section 4102(d) of this title, is chargeable to that
country.
§ 4112. Burden of proof
An alien claiming to be an immigrant, a special immigrant, or an imme-
diate relative has the burden of proving that the alien is entitled to immi-
grant, special immigrant, or immediate relative status.
CHAPTER 43—PETITIONS AND DOCUMENTATION
SUBCHAPTER I—PETITIONS
Sec.
4301.
General.
4302.
Approving petitions for children.
4303.
Petitions for married aliens.
4304.
Revoking approved petitions.
SUBCHAPTER II—DOCUMENTATION
4311.
Documentation requirements.
4312.
Applications for immigrant visas and registration.
4313.
Issuing immigrant visas and other documentation.
4314.
Period of validity and revocation.
4315.
Unused immigrant visas.
4316.
Reentry permits.
4317.
Burden of proof.
4318.
Documentation waivers.
SUBCHAPTER I—PETITIONS
§ 4301. General
(a) PETITIONS TO THE ATTORNEY GENERAL.—The following individuals
may petition the Attorney General for the classification of aliens as follows:
(1) a citizen of the United States claiming an alien is entitled to im-
mediate relative status or to be classified under section 4103(b), (d),
or (e) of this title.
(2) an alien spouse described in section 116(2) of this title and desir-
ing to acquire, or to have a child of the alien spouse acquire, immediate
relative status.
(3) an alien eligible for immediate relative status (and a child of the
alien if the child is not classified under clause (4) of this subsection)
because the alien—
146
(A) is the spouse of a citizen of the United States;
(B) is an individual of good moral character;
(C) has resided in the United States with the spouse; and
(D) demonstrates to the Attorney General that—
(i) the alien is residing in the United States;
(ii) the marriage between the alien and the spouse was en-
tered into in good faith by the alien;
(iii) during the marriage the alien or a child of the alien
has been battered by, or has been the subject of extreme cru-
elty perpetrated by, the spouse; and
(iv) the alien’s removal would result in extreme hardship to
the alien or child.
(4) a child eligible for immediate relative status because the child—
(A) is the child of a citizen of the United States;
(B) is an individual of good moral character;
(C) has resided in the United States with the citizen parent;
and
(D) demonstrates to the Attorney General that—
(i) the child is residing in the United States;
(ii) during the period of residence with the citizen parent
the child has been battered by, or has been the subject of ex-
treme cruelty perpetrated by, that parent; and
(iii) the child’s removal would result in extreme hardship
to the child.
(5) an alien lawfully admitted for permanent residence claiming clas-
sification for an alien entitled to be classified under section 4103(c) of
this title.
(6) an alien eligible to be classified under section 4103(c) of this title
(and a child of the alien if the child is not classified under clause (7)
of this subsection) because the alien—
(A) is the spouse of an alien lawfully admitted for permanent
residence;
(B) is an individual of good moral character;
(C) has resided in the United States with the spouse;
(D) demonstrates to the Attorney General that—
(i) the alien is residing in the United States;
(ii) the marriage between the alien and the spouse was en-
tered into in good faith by the alien;
(iii) during the marriage the alien or a child of the alien
has been battered by, or has been the subject of extreme cru-
elty perpetrated by, the spouse; and
147
(iv) the alien’s removal would result in extreme hardship to
the alien or child.
(7) a child eligible to be classified under section 4103(c) of this title
because the child—
(A) is the child of an alien lawfully admitted for permanent resi-
dence;
(B) is an individual of good moral character;
(C) has resided in the United States with the permanent resi-
dent alien parent; and
(D) demonstrates to the Attorney General that—
(i) the child is residing in the United States;
(ii) during the period of residence with the permanent resi-
dent alien parent the child has been battered by, or has been
the subject of extreme cruelty perpetrated by, that parent;
and
(iii) the child’s removal would result in extreme hardship
to the child.
(8) an alien desiring to be classified under section 4104(b)(1)(A) of
this title, or a person for the alien.
(9) an individual intending to employ in the United States an alien
entitled to be classified under section 4104(b)(1)(B) or (C), (c), or (d)
of this title.
(10) an alien (except a special immigrant as defined in section
133(a)(4) of this title) desiring to be classified under section 4104(e)
of this title, or a person for the alien.
(11) an alien desiring to be classified under section 4104(f) of this
title.
(b) PETITIONS TO THE SECRETARY OF STATE.—(1) An alien claiming
status as a special immigrant as defined in section 133(a)(4) of this title
may petition the Secretary of State to be classified under section 4104(e)
of this title. The alien may file the petition only after being notified by the
Secretary that special immigrant status under section 133(a)(4) has been
recommended and approved as provided in section 133(a)(4).
(2)(A) An alien desiring to be classified under section 4105 of this title
may petition the Secretary of State to be classified under section 4105.
(B) The alien shall file the petition at the place and time the Secretary
of State decides by regulation. Only one petition may be filed during a peti-
tioning period established by the Secretary. If more than one petition is filed
during a period, all petitions filed by the alien during that period are void.
148
(C)(i) The Secretary of State shall designate a period during which a pe-
tition for a visa that may be issued under section 4105 of this title for the
fiscal year beginning after the end of the period may be filed.
(ii) An alien who qualifies, through random selection, for a visa under
section 4105 of this title remains eligible to receive the visa through the end
of the fiscal year for which the alien was selected.
(iii) The Secretary of State shall prescribe regulations necessary to carry
out this subparagraph.
(D) A petition under this paragraph shall—
(i) be in a form the Secretary of State prescribes by regulation; and
(ii) contain information and documentary evidence the Secretary re-
quires.
(c) APPROVING PETITIONS.—(1) After investigating the facts about a pe-
tition, and after consulting with the Secretary of Labor about a petition to
classify an alien under section 4104(c) or (d) of this title, the Attorney Gen-
eral shall approve the petition if the Attorney General decides the facts stat-
ed in the petition are true and the alien is an immediate relative or entitled
to be classified as requested under section 4103 or 4104 of this title.
(2) When acting on a petition under subsection (a)(3), (4), (6), or (7)
of this section, the Attorney General shall consider any credible evidence rel-
evant to the petition. Only the Attorney General may decide what evidence
is credible and the weight to be given that evidence.
(3) After approving the petition, the Attorney General shall submit one
copy to the Secretary of State. The Secretary then shall authorize the ap-
propriate consular officer to classify the alien as approved.
(d) PETITIONS FOR PROFESSIONAL ATHLETES.—(1) For purposes of this
subsection, ‘‘professional athlete’’ means an individual who is employed as
an athlete by—
(A) a team that is a member of an association of at least 6 profes-
sional sports teams whose total combined revenues exceed $10,000,000
per year, if the association governs the conduct of its members and reg-
ulates the contests and exhibitions in which its member teams regularly
engage; or
(B) a minor league team that is affiliated with such an association.
(2) A petition under subsection (a)(9) of this section for classification of
a professional athlete remains valid for the athlete after the athlete changes
employers if the new employer is a team in the same sport as the team
which was the employer who filed the petition.
(e) 
NONDISCRIMINATION.—Except 
as 
provided 
in 
sections 
133,
4102(d)(6), 4103–4107, and 4110(a)(1) of this title, an alien may not re-
ceive a preference or priority or be discriminated against in issuing an im-
149
migrant visa under section 4313 of this title because of the alien’s race, sex,
nationality, place of birth, or place of residence. This subsection does not
limit the authority of the Secretary of State to establish the procedures for
processing immigrant visa applications or the locations where the applica-
tions will be processed.
(f) NO ENTITLEMENT TO BE ADMITTED TO THE UNITED STATES.—This
subchapter does not entitle an immigrant for whom a petition is approved
under this subchapter to be admitted to the United States if found not to
be entitled to the classification on arrival in the United States.
§ 4302. Approving petitions for children
(a) FAVORABLE HOME STUDY REQUIREMENT.—Notwithstanding section
4301 of this title, a petition for a child as defined in section 108(a)(6) of
this title may be approved only if a valid home study has been recommended
favorably—
(1) by an agency of the State of the proposed residence of the child;
(2) by an agency that the State of the proposed residence of the
child authorizes to conduct the study; or
(3) for a child adopted outside the United States, by an appropriate
adoption agency licensed in the United States.
(b) PETITIONS FOR CERTAIN CHILDREN FATHERED BY CITIZENS OF
THE UNITED STATES.—(1) An alien claiming to be an alien described in
paragraph (2)(A) of this subsection, or a person for the alien, may petition
the Attorney General to be classified as an immediate relative or under sec-
tion 4103(b) or (d) of this title, as appropriate.
(2) After investigating the facts about a petition, the Attorney General
shall approve the petition if—
(A) the Attorney General has reason to believe that the alien was
born in Kampuchea, Korea, Laos, Thailand, or Vietnam after Decem-
ber 31, 1950, and before October 22, 1982, and was fathered by a citi-
zen of the United States;
(B) the Attorney General has received an acceptable guarantee of
legal custody and financial responsibility described in paragraph (5) of
this subsection; and
(C) for an alien less than 18 years of age—
(i) an appropriate child welfare agency licensed in the United
States and actively involved in the intercountry placement of chil-
dren arranged the placement of the alien with a sponsor in the
United States; and
(ii) the mother or guardian of the alien, in writing, irrevocably
released the alien for emigration.
150
(3) In considering a petition filed under this subsection, the Attorney
General shall—
(A) consult with appropriate government officials and officials of pri-
vate voluntary organizations in the foreign country in which the alien
was born in making the findings described in paragraph (2)(A) and
(C)(i) of this subsection; and
(B) consider the physical appearance of the alien and evidence pro-
vided by the petitioner, including—
(i) birth and baptismal certificates;
(ii) local civil records;
(iii) photographs of, and letters or proof of financial support
from, a putative father who is a citizen of the United States; and
(iv) relevant or probative testimony of witnesses.
(4) After approving the petition, the Attorney General shall submit one
copy to the Secretary of State.
(5) A guarantee of legal custody and financial responsibility for an alien
required by paragraph (2) of this subsection must—
(A) be signed in the presence of a consular officer or an immigration
officer by a sponsor who is—
(i) at least 21 years of age;
(ii) of good moral character; and
(iii) a citizen of the United States or an alien lawfully admitted
for permanent residence; and
(B) provide that the sponsor agrees—
(i) for an alien less than 18 years of age, to assume legal cus-
tody for the alien when the alien departs for the United States
and until the alien becomes 18 years of age, as provided under the
laws of the State in which the alien and the sponsor will reside;
and
(ii) to provide, during the longer of the 5-year period beginning
on the date the alien acquires the status of an alien lawfully ad-
mitted for permanent residence or the period beginning on that
date and ending on the date the alien becomes 21 years of age,
financial support necessary to maintain the family in the United
States of which the alien is a member at a level equal to at least
125 percent of the current official poverty line (established by the
Director of the Office of Management and Budget under section
673(2) of the Community Services Block Grant Act (42 U.S.C.
9902(2) and revised by the Secretary of Health and Human Serv-
ices under section 673(2)) for a family the same size as that of
the family of the alien.
151
(6) The Attorney General may bring a civil action against the sponsor
in the district court of the United States for the judicial district in which
the sponsor resides to enforce a guarantee of legal custody and financial re-
sponsibility made under paragraph (5) of this subsection. However, a spon-
sor or the estate of the sponsor is not liable under the guarantee if the
sponsor dies or is adjudicated a bankrupt under title 11.
§ 4303. Petitions for married aliens
(a) LIMITATIONS ON APPROVING PETITIONS FOR CERTAIN SPOUSES.—
(1) The Attorney General may approve a spousal petition under section
4103(c) of this title for the classification of the spouse of an alien if the
alien, because of a prior marriage, had acquired the status of an alien law-
fully admitted for permanent residence as the spouse of a citizen of the
United States or an alien lawfully admitted for permanent residence only
if—
(A) 5 years have passed since the alien had acquired the status of
an alien lawfully admitted for permanent residence; or
(B) the alien, by clear and convincing evidence, satisfies the Attorney
General that the prior marriage was not entered into to evade the im-
migration laws.
(2) Paragraph (1) of this subsection does not apply to a petition for the
classification of the spouse of an alien if the prior marriage of the alien was
ended by the death of the alien’s spouse.
(b) PROHIBITION ON APPROVING PETITIONS BECAUSE OF MARRIAGES
TO EVADE IMMIGRATION LAWS.—Notwithstanding section 4301(c) of this
title, a petition may not be approved if—
(1) an alien previously acquired, or sought to acquire, immediate rel-
ative status or previously was classified, or sought to be classified,
under section 4103(c) of this title as a spouse of an alien lawfully ad-
mitted for permanent residence, because of a marriage the Attorney
General decides was entered into to evade the immigration laws; or
(2) the Attorney General decides the alien has attempted or con-
spired to enter into a marriage to evade the immigration laws.
(c) REQUIRED RESIDENCE OUTSIDE THE UNITED STATES FOR CERTAIN
ALIENS INVOLVED IN PROCEEDINGS.—(1) Notwithstanding section 4301(a)
and (b) of this title, a petition to grant immediate relative status or to clas-
sify an alien under section 4103, 4104, or 4105 of this title because of a
marriage entered into after November 9, 1986, and during the period de-
scribed in section 9101(g)(1)(C) of this title, may not be approved until the
alien resides outside the United States for 2 years after the marriage.
152
(2) Paragraph (1) of this subsection does not apply to a marriage if the
alien establishes by clear and convincing evidence satisfactory to the Attor-
ney General that—
(A) the marriage was entered into in good faith and under the laws
of the place where the marriage took place;
(B) the marriage was not entered into to procure the alien’s admis-
sion as an immigrant; and
(C) 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 daughter.
(3) Under regulations of the Attorney General, the Attorney General shall
allow only one level of administrative appellate review for each alien under
paragraph (2) of this subsection.
§ 4304. Revoking approved petitions
(a) GENERAL.—The Attorney General may revoke at any time a petition
approved by the Attorney General under section 4301(c) of this title if the
Attorney General considers that there is good cause to revoke. Revocation
is effective as of the date of approval of the petition if notice of the revoca-
tion is mailed to the last known address of the petitioner and the Secretary
of State notifies the alien for whom the petition was filed of the revocation
before the alien begins traveling to the United States. If notice is not given
as required by this section and the alien applies for admission to the United
States, the admissibility of the alien shall be decided as provided in sections
6102 and 6704 of this title.
(b) EXCEPTION.—Legal termination of a marriage may not be the only
basis for revoking a petition of an alien filed under section 4301(a)(3) or
(6) of this title because of conditions described in section 4301(a)(3)(D)(i)–
(iii) and (6)(D)(i)–(iii).
SUBCHAPTER II—DOCUMENTATION
§ 4311. Documentation requirements
(a) DOCUMENTS REQUIRED.—(1) An immigrant may be admitted to the
United States only if, when applying for admission, the immigrant—
(A)(i) is in possession of an unexpired entry document required by
this title; or
(ii) was born after an entry document was issued to the accompany-
ing parent;
(B) is in possession of an unexpired travel document or document
of identity and nationality when required by regulations the Attorney
General prescribes; and
153
(C) except as otherwise provided in this title, is in possession of a
visa issued as provided under sections 4103–4105, 4107, and 4313(b)
of this title.
(2) This section does not apply to an alien admitted under section 5105
of this title.
(b) WAIVER FOR CERTAIN SPECIAL IMMIGRANTS.—Under conditions that
may be prescribed by the Attorney General, the Attorney General may read-
mit a special immigrant as defined in section 133(a)(1) of this title who is
returning to the United States, without the alien’s having to obtain a pass-
port, immigrant visa, reentry permit, or other documentation, if the alien
otherwise is admissible.
§ 4312. Applications for immigrant visas and registration
(a) APPLICATION REQUIREMENTS.—An alien applying for an immigrant
visa must apply in the way and at the place prescribed by regulation. The
application must contain—
(1) the complete true name of the alien and each alias ever used;
(2) the age and sex of the alien;
(3) the date and place of birth of the alien; and
(4) additional information prescribed by regulation that is necessary
to identify the alien and enforce the immigration and nationality laws.
(b) ADDITIONAL REQUIREMENTS.—(1) An alien applying for an immi-
grant visa must—
(A) register if required by chapter 81 of this title when applying for
the visa;
(B) take a physical and mental examination prescribed by regulation;
(C) if required under regulations the Secretary prescribes, present a
passport or other suitable travel document or a document of identity
and nationality; and
(D) provide the consular officer, with the application, with—
(i) a copy of a certification by the appropriate police authorities
stating what their records show about the alien;
(ii) a certified copy of any existing prison record, military
record, and record of birth of the alien; and
(iii) a certified copy of any other record or documentation about
the alien that the consular officer may require.
(2) Each copy provided under paragraph (1)(D) of this subsection shall
be attached to the application and become a part of the application. If the
alien satisfies the consular officer that it is not possible to obtain the copy,
the consular officer may allow the alien to submit other satisfactory evi-
dence of the fact to which the copy relates.
154
(c) SIGNATURE AND OATH.—Except as otherwise prescribed by regula-
tion, an alien must—
(1) sign an application for an immigrant visa in the presence of a
consular officer; and
(2) take an oath administered by the consular officer verifying the
application.
(d) PROCESSING IMMIGRANT VISA APPLICATIONS OF CUBAN NATIONALS
IN 3D COUNTRIES.—(1) In this subsection, ‘‘process’’ means accepting and
reviewing an application and preparing necessary documents and making
appropriate decisions related to the application.
(2) Notwithstanding sections 6108(a), 6109, and 8302 of this title, a con-
sular officer shall process an application for an immigrant visa by a Cuban
national located in a 3d country on the same basis as an application for
an immigrant visa by a national of another country.
(e) STATEMENT ABOUT NO ENTITLEMENT TO ENTER
THE UNITED
STATES.—An application for an immigrant visa shall inform the applicant
that a visa or other documentation issued to an alien does not entitle the
alien to enter the United States if, on arrival at a port of entry, the alien
is found to be inadmissible.
(f) CANCELLATION OF REGISTRATION.—The Secretary 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.
§ 4313. Issuing immigrant visas and other documentation
(a) REGISTRATION ON WAITING LISTS.—Waiting lists of aliens entitled
to an immigrant classification that is subject to the numerical limitations
specified in chapter 41 of this title shall be maintained under regulations
the Secretary of State prescribes.
(b) ORDER
OF ISSUING VISAS.—(1) Immigrant visas made available
under section 4103 or 4104 of this title shall be issued to qualified immi-
grants in the order in which a petition for each immigrant is filed with the
Attorney General (or with the Secretary for special immigrants as defined
in section 133(a)(4) of this title) under section 4301(a) or (b) of this title.
(2) Immigrant visas made available under section 4105 of this title shall
be issued to qualified immigrants as the Secretary prescribes for the fiscal
year involved.
(c) ISSUING VISAS.—(1) A consular officer issues an immigrant visa at
the office of the consular officer outside the United States. A consular offi-
155
cer may issue an immigrant visa to an eligible immigrant who has made
a proper application for the visa.
(2) A consular officer may issue a special immigrant or an immediate rel-
ative an immigrant visa as a special immigrant or an immediate relative on
receiving satisfactory proof, under regulations prescribed under this title,
that the applicant is entitled to special immigrant or immediate relative sta-
tus.
(d) PROHIBITIONS.—(1) A consular officer may not issue an immigrant
visa or other documentation to an alien if—
(A) the alien’s application does not comply with this title or regula-
tions prescribed under this title; or
(B) the consular officer has reason to believe the alien is ineligible
for the visa or other documentation under subchapter I of chapter 63
of this title or any other provision of law.
(2) Notwithstanding paragraph (1)(B) of this subsection, a consular offi-
cer may issue an immigrant visa or other documentation to an alien to
whom section 6306(a)–(c) 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 a bond approved by the Attorney General has been filed under sec-
tion 6306(d) 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 to which the immigrant is charged;
(2) the immigrant’s particular status under that country;
(3) the preference classification or immediate relative or special im-
migrant status to which the immigrant is charged;
(4) the expiration date of the visa; and
(5) additional required information.
§ 4314. Period of validity and revocation
(a) VALIDITY.—An immigrant visa is valid for the period prescribed by
regulation, but for not more than 6 months. However, an immigrant visa
issued to a child legally adopted by a citizen of the United States and the
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
States by the Federal Government, or is temporarily outside the United
States on business, is valid until the regular return of the citizen to the
United States from the service, employment, or business, but for not more
than 3 years.
156
(b) REVOCATION.—A consular officer or the Secretary of State may re-
voke at any time an immigrant visa or other documentation issued to an
immigrant. A revocation invalidates the visa or documentation from the date
the visa or documentation is issued. The Attorney General shall be notified
of each revocation.
§ 4315. Unused immigrant visas
(a) REPLACING UNUSED VISAS.—A consular officer may replace an im-
migrant visa under its original number during the fiscal year it was issued
if—
(1) the immigrant establishes to the satisfaction of the consular offi-
cer that the immigrant was unable to use the visa when it was valid
for reasons that the immigrant did not cause and that were beyond the
immigrant’s control;
(2) the consular officer finds the immigrant is eligible for an immi-
grant visa; and
(3) the immigrant pays again the statutory fees for an application
and immigrant visa.
(b) ISSUING UNUSED VISAS.—An eligible immigrant may be issued an
unused immigrant visa that the immigrant qualifies for if the visa originally
was issued to another immigrant—
(1) removed after being denied admission;
(2) not applying for admission before the visa expires; or
(3) as a preference immigrant and the immigrant is found not to be
a preference immigrant.
§ 4316. Reentry permits
(a) APPLICATIONS.—An alien lawfully admitted for permanent residence
who intends to leave the United States temporarily may apply to the Attor-
ney General for a reentry permit to reenter the United States. The applica-
tion must—
(1) state the length of, and reason for, the departure;
(2) be accompanied by photographs of the applicant, and state other
information, that the Attorney General prescribes by regulation; and
(3) be made under oath.
(b) ISSUING REENTRY PERMITS.—The Attorney General may issue the
reentry permit if the Attorney General finds—
(1) the application is made in good faith; and
(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 issued for not more
than 2 years from the date it is issued and may not be renewed. The alien
may use the permit for any number of reentries into the United States. The
157
alien shall surrender the permit to the Commissioner of Immigration and
Naturalization when the permit expires.
(d) PRESENTATION OF REENTRY PERMIT ON RETURNING TO THE UNIT-
ED STATES.—An alien issued 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 issued the visa or documentation.
A consular officer may issue the visa or documentation only if satisfied that
the individual is eligible to receive the visa or documentation.
§ 4318. Documentation waivers
The Attorney General may waive sections 4311(a)(1) and 6301(a)(2) and
(b) of this title for an immigrant who is in possession of an immigrant visa
and otherwise is admissible if the Attorney General is satisfied that the im-
migrant did not know, and by reasonable diligence could not have known,
of the immigrant’s inadmissibility—
(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.
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.
158
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(a) 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
4107 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 in this subchapter.
(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-
159
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 an officer or employee of the Immigration
and Naturalization Service for a personal interview about the informa-
tion required by section 4504(b) of this title.
§ 4504. Petitions
(a) TIME FOR SUBMISSION.—(1) Except as provided in 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 removal proceeding against an alien
who did not submit a petition within the 90-day period required under para-
graph (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
(C) was not entered into to procure the admission 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
160
(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 removed;
(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
161
(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) When acting on a petition under this subsection, the Attorney General
shall consider any credible evidence relevant to the petition. Only the Attor-
ney General may decide what evidence is credible and the weight to be given
that evidence.
(4) 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 admission as an im-
migrant; 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-
162
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 removal proceeding. The burden of proof is on the At-
torney General to establish by a preponderance of the evidence that—
(A) if ended under subsection (a) of this section, a ground described
in 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 removal proceeding of estab-
lishing 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 6302(a)(2) or 6309(b) of this title obtained by
an alien to acquire the status of an alien lawfully admitted for permanent
residence 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.
(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.
163
(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 in 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 in section 4524(b) of this section; and
(2) appear before an officer or employee of the Immigration and
Naturalization Service for a personal interview about the information
required by section 4524(b) of this title.
§ 4524. Petitions
(a) TIME FOR SUBMISSION.—(1) Except as provided in 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 removal proceeding against an alien
who did not submit a petition within the 90-day period required under para-
graph (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
requirements of section 4523 of this title. However, the failure of the Attor-
164
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 in clauses (1) and (2) of this
subsection during the entire period of the alien’s residence in the Unit-
ed 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
entrepreneur acquired the status, the Attorney General decides the alien en-
trepreneur—
165
(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 in 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 removal proceeding. 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
in 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 removal proceeding of estab-
lishing compliance with section 4523 of this title.
§ 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-
166
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.
CHAPTER 47—ALIENS BORN IN VIETNAM AND
FATHERED BY CITIZENS OF THE UNITED STATES
Sec.
4701.
Definitions and application.
4702.
Validity and denial of visas.
4703.
Admission.
4704.
Rights, privileges, status, and benefits.
4705.
Nonexclusive procedure for acquiring status.
§ 4701. Definitions and application
(a) DEFINITIONS.—In this chapter—
(1) ‘‘child’’ has the same meaning given that term in section
108(a)(1)–(5) of this title.
(2) ‘‘principal alien’’ means an alien born in Vietnam after January
1, 1962, and before January 1, 1976, and fathered by a citizen of the
United States.
(b) APPLICATION.—This chapter applies to an alien who resided in Viet-
nam on December 22, 1987, and who satisfies a consular officer or an offi-
cer of the Immigration and Naturalization Service after a face-to-face inter-
view that the alien is—
(1) a principal alien;
(2) the spouse or child of a principal alien and is accompanying or
following to join the principal alien; or
(3) accompanying or following to join a principal alien and—
(A) is the natural mother of the principal alien or the spouse
or child of the mother; or
(B) has acted in effect as the principal alien’s mother, father,
or next-of-kin or is the spouse or child of the alien who has acted
in that capacity.
§ 4702. Validity and denial of visas
(a) VALIDITY.—An immigrant visa issued under this chapter is valid for
one year.
(b) DENIAL OF VISA.—An immigrant visa may not be issued to an alien
described in section 4701(b)(3) of this title unless the consular officer re-
ferred to in section 4701(b) of this title decides that the alien’s relationship
with the principal alien is similar to that which exists between close family
members and the admission of the alien is necessary for humanitarian pur-
poses or to ensure family unity.
167
§ 4703. Admission
(a) GENERAL.—Notwithstanding any numerical limitations specified in
chapter 41 of this title, the Attorney General may admit an alien described
in section 4701(b) of this title to the United States as an immigrant if the
alien—
(1) is admissible as an immigrant; and
(2) is issued an immigrant visa and leaves Vietnam after March 21,
1988.
(b) NONAPPLICATION AND WAIVER.—When deciding on an alien’s admis-
sibility as an immigrant under this chapter—
(1) sections 6301 (a)(2)–(d) and 6306 (a)–(c) of this title do not
apply; and
(2) the Attorney General, on the recommendation of a consular offi-
cer after an investigation by the consular officer, on an individual basis
may waive any other provision of subchapter I of chapter 63 of this
title (except sections 6309(a)(3), 6310(a)–(c), and 6311) in writing for
the alien for humanitarian purposes, to ensure family unity, or when
it is otherwise in the public interest.
§ 4704. Rights, privileges, status, and benefits
(a) RIGHTS, PRIVILEGES, AND STATUS.—The natural mother of the prin-
cipal alien may not acquire any right, privilege, or status under this title
because of that parentage after an alien described in section 4701(b)(3)(B)
of this title is admitted to the United States.
(b) ELIGIBILITY FOR BENEFITS.—(1) An alien admitted (or awaiting ad-
mission) to the United States under this chapter is eligible for benefits
under subchapter I of chapter 131 of this title to the same extent as an
individual admitted (or awaiting admission) under section 5105 of this title.
(2) Paragraph (1) of this subsection applies to an individual who leaves
Vietnam after October 1, 1988, and—
(A) is described in section 4701(b) of this section but is issued an
immigrant visa—
(i) under section 4103 of this title; or
(ii) because the individual is an alien described in section
4102(d) of this title rather than an alien referred to in section
4102(a), (b), or (c) of this title; or
(B) would be described in section 4701(b) of this title if section
4701(b) also applied to principal aliens who were citizens of the United
States.
168
§ 4705. Nonexclusive procedure for acquiring status
An alien eligible under this chapter to acquire the status of an alien law-
fully admitted for permanent residence is not barred from seeking that sta-
tus under any other provision of law under which the alien is eligible.
CHAPTER 49—MISCELLANEOUS
Sec.
4901.
Eligibility for visa after departing the United States.
4902.
Deposit of immigrant visa fees.
4901. Eligibility for visa after departing the United States
(a) GENERAL.—An alien who has been physically present in the United
States is eligible to receive an immigrant visa within 90 days after departing
the United States if the alien—
(1) was a lawful nonimmigrant at the time of the departure; or
(2)(A) is the spouse or unmarried child of an individual who at any
time became lawfully admitted for temporary or permanent residence
under chapter 93 of this title, section 210 of the Immigration and Na-
tionality Act, or section 202 of the Immigration Reform and Control
Act of 1986 (Public Law 99–603, 100 Stat. 3404);
(B) was the spouse or unmarried child of that individual on May 5,
1988;
(C) entered the United States before May 5, 1988, resided in the
United States on May 5, 1988, and is not a lawful permanent resident;
and
(D) applied for benefits under section 301(a) of the Immigration Act
of 1990 (Public Law 101–649, 104 Stat. 5029).
(b) ENDING DATE.—This section ends on October 1, 1997.
§ 4902. Deposit of immigrant visa fees
Receipts received from an increase in the fee for an immigrant visa in
effect on September 30, 1994, caused by processing an applicant’s finger-
prints shall be deposited in the Administration of Foreign Affairs Account
as offsetting receipts and are available until expended.
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.
Adjustment of status.
§ 5101. Definition
(a) APPROPRIATE CONSULTATION.—In this chapter, ‘‘appropriate con-
sultation’’ means discussions in person between Cabinet-level representatives