109
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-
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.
110
(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 134(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 134(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 seeking to enter the United States to en-
gage 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.
(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
111
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) 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 Sec-
retary of Labor decides and certifies to the Secretary of State and the At-
torney General that—
(A) there are not enough workers who are able, willing, qualified (or
equally qualified if the alien is a member of the teaching profession or
has exceptional ability in the sciences or arts), and available when the
alien applies for the visa and admission and at the place where the
alien is to perform that labor; and
(B) employment of the alien will not affect adversely the wages and
working conditions of similarly employed workers in the United States.
(3) Before making a decision and certification under paragraph (2) of
this subsection, the Secretary of Labor shall provide that—
(A) a certification may be made only if the 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
(B) 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.
§ 4105. Visa allocation for diversity immigrants
(a) DEFINITIONS.—In this section—
112
(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
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—