252
(ii) If the revised unclassified summary is not approved by the court with-
in 15 days after its submission under clause (i) of this subparagraph, the
removal hearing shall be terminated unless the judge finds that—
(I) the continued presence of the alien in the United States would
likely cause serious and irreparable harm to the national security or
death or serious bodily injury to any individual; and
(II) the provision of the summary would likely cause serious and ir-
reparable harm to the national security or death or serious bodily in-
jury to any individual.
(E) If a judge makes the findings described in subparagraph (D)(ii)(I)
and (II) of this paragraph—
(i) the removal hearing shall continue;
(ii) the Attorney General shall deliver to the alien a statement that
no summary is possible;
(iii) the classified information submitted in camera and ex parte may
be used as provided in this paragraph; and
(iv) if the alien is lawfully admitted for permanent residence, the
judge (under rules of the removal court) shall designate a special attor-
ney to assist the alien by—
(I) reviewing in camera the classified information on behalf of
the alien; and
(II) challenging through an in camera proceeding the veracity
of the evidence contained in the classified information.
(F) A special attorney receiving classified information under subpara-
graph (E)(iv) of this paragraph may not disclose the information to the
alien or to any other attorney representing the alien. A special attorney who
violates this restriction shall be fined under title 18, imprisoned for at least
10 years but not more than 25 years, or both.
(f) ARGUMENTS.—Following receipt of evidence, the Attorney General
and the alien shall be given fair opportunity to present argument as to
whether the evidence is sufficient to justify the removal of the alien. The
Attorney General shall open the argument. The alien shall be permitted to
reply. The Attorney General then shall be permitted to reply in rebuttal.
The judge may allow any part of the argument that refers to evidence re-
ceived in camera and ex parte to be heard in camera and ex parte.
(g) BURDEN OF PROOF.—In the hearing, the Attorney General has the
burden of proving by a preponderance of the evidence that the alien is sub-
ject to removal because the alien is an alien terrorist.
(h) RULES OF EVIDENCE.—The Federal Rules of Evidence (28 App.
U.S.C.) do not apply in a removal hearing under this section.
253
(i) FINDING THAT ALIEN IS REMOVABLE.—If the judge, after consider-
ing the evidence on the record as a whole, finds that the Attorney General
has met the burden of proof, the judge shall order the alien removed and
detained pending removal from the United States. If the alien was released
pending the removal hearing, the judge shall order the Attorney General to
take the alien into custody.
(j) WRITTEN ORDER.—At the time of issuing a decision whether the alien
shall be removed, the judge shall prepare a written order containing a state-
ment of facts found and conclusions of law. Any part of the order that
would reveal the substance or source of information received in camera and
ex parte under subsection (e) of this section may not be made available to
the alien or the public.
(k) NO RIGHT TO ANCILLARY RELIEF.—The judge may not at any time
consider or provide for relief from removal based on—
(1) asylum under section 5106 of this title;
(2) voluntary departure under section 6714(a) or (b) of this title;
(3) withholding of removal under section 6716(d) of this title;
(4) cancellation of removal under section 6721 of this title;
(5) adjustment of status under section 9101 or 9102 of this title;
or
(6) registry under section 9104 of this title.
§ 6905. Appeals
(a) APPEAL OF DENIAL OF APPLICATION FOR REMOVAL HEARING.—(1)
The Attorney General may seek a review of the denial of an order sought
in an application filed under section 6903 of this title. The appeal must be
filed in the United States Court of Appeals for the District of Columbia Cir-
cuit by notice of appeal filed within 20 days after the date of the denial.
(2) The entire record of the proceeding shall be transmitted to the Court
of Appeals under seal, and the Court of Appeals shall hear the matter ex
parte.
(3) The Court of Appeals shall—
(A) review questions of law de novo; and
(B) set aside a finding of fact only if the finding was clearly erro-
neous.
(b) APPEAL OF DECISION ABOUT SUMMARY OF CLASSIFIED INFORMA-
TION.—(1) The Attorney General may take an interlocutory appeal to the
United States Court of Appeals for the District of Columbia Circuit of—
(A) a decision by the judge under section 6904(e)(3) of this title;
or
(B) the refusal of the judge to make the findings permitted by sec-
tion 6904(e)(3) of this title.
254
(2) In an interlocutory appeal taken under this subsection, the entire
record (including any proposed order of the judge, any classified informa-
tion, and the summary of evidence) shall be transmitted to the Court of Ap-
peals. The classified information shall be transmitted under seal. A verbatim
record of the appeal shall be kept under seal in the event of any other judi-
cial review.
(c) APPEAL OF DECISION IN HEARING.—(1) Subject to paragraph (2) of
this subsection, the alien or the Attorney General may appeal the decision
of the judge after a removal hearing to the United States Court of Appeals
for the District of Columbia Circuit by filing a notice of appeal within 20
days after the date on which the order is issued. The order may not be en-
forced during the pendency of an appeal under this subsection.
(2)(A) Unless the alien waives the right to a review under this paragraph,
in any case involving an alien lawfully admitted for permanent residence
who is denied a written summary of classified information under section
6904(e)(3) of this title and with respect to which the procedures described
in section 6904(e)(3)(E)(iv) apply, any order issued by the judge shall be
reviewed by the Court of Appeals for the District of Columbia Circuit.
(B) With respect to any issue involving classified information that arises
in the review, the alien shall be represented only by the special attorney des-
ignated under section 6904(e)(3)(E)(iv) of this title.
(3) In an appeal or review to the Court of Appeals under this sub-
section—
(A) the entire record shall be transmitted to the Court of Appeals;
(B) information received in camera and ex parte, and any part of
the order that would reveal the substance or source of the information,
shall be transmitted under seal;
(C) the appeal or review shall be heard as expeditiously as prac-
ticable and the court may dispense with full briefing and hear the mat-
ter only on the record of the judge of the removal court and on briefs
or motions the court may require to be filed by the parties;
(D) the court shall review questions of law de novo;
(E) a finding of fact shall be accorded deference by the reviewing
court and may not be set aside unless the finding was clearly erro-
neous, except that in a review under paragraph (2) of this subsection
in which an alien lawfully admitted for permanent residence was denied
a written summary of classified information under section 6904(c)(3)
of this title, the Court of Appeals shall review questions of fact de novo;
and
(F) the Court of Appeals shall issue an opinion within 60 days after
the date of issuance of the final order of the district court.
255
(d) CERTIORARI.—Following a decision by the Court of Appeals under
subsection (c) of this section, the alien or the Attorney General may petition
the Supreme Court for a writ of certiorari. Any information transmitted to
the Court of Appeals under seal, if also submitted to the Supreme Court,
shall be transmitted under seal. An order of removal may not be stayed
pending disposition of a writ of certiorari, except as provided by the Court
of Appeals or a Justice of the Supreme Court.
(e) APPEAL OF DETENTION ORDER.—(1) Sections 3145–3148 of title 18
apply to an alien to whom section 6907(b)(1) of this title applies. For pur-
poses of—
(A) section 3145 of title 18, an appeal shall be taken to the United
States Court of Appeals for the District of Columbia Circuit; and
(B) section 3146 of title 18, the alien shall be considered released
in connection with a charge of an offense punishable by life imprison-
ment.
(2) The determinations and actions of the Attorney General under section
6907(b)(2)(C) of this title are not subject to judicial review (including appli-
cation for a writ of habeas corpus), except for a claim by the alien that con-
tinued detention violates the alien’s rights under the Constitution. The Unit-
ed States Court of Appeals for the District of Columbia Circuit has exclu-
sive jurisdiction over such a claim.
§ 6906. Custody and release pending removal hearing
(a) ON FILING APPLICATION.—(1) Subject to paragraphs (2) and (3) of
this subsection, the Attorney General may—
(A) take into custody any alien with respect to whom an application
under section 6903 of this title has been filed; and
(B) retain the alien in custody in accordance with the procedures au-
thorized by this chapter.
(2)(A) An alien lawfully admitted for permanent residence is entitled to
a release hearing before the judge assigned to hear the removal hearing.
The alien shall be detained pending the removal hearing, unless the alien
demonstrates to the court that the alien—
(i) is lawfully admitted for permanent residence;
(ii) is not likely to flee if released on conditions the court may pre-
scribe (including the posting of any monetary amount); and
(iii) will not endanger national security, or the safety of any individ-
ual or the community, if released.
(B) The judge may consider classified information submitted in camera
and ex parte in deciding whether to release an alien pending the removal
hearing.
256
(3)(A) Subject to subparagraph (B) of this paragraph, if a judge of the
removal court denies the order sought in an application filed under section
6903 of this title, and the Attorney General does not seek review of the de-
nial, the alien shall be released from custody.
(B) Subparagraph (A) of this paragraph does not prevent the arrest and
detention of the alien under chapter 67 of this title.
(b) CONDITIONAL RELEASE IF ORDER DENIED AND REVIEW SOUGHT.—
(1) If a judge of the removal court denies the order sought in an application
filed under section 6903 of this title and the Attorney General seeks review
of the denial, the judge shall release the alien from custody subject to the
least restrictive condition, or combination of conditions, of release described
in section 3142(b) and (c)(1)(B)(i)–(xiv) of title 18 that will—
(A) reasonably ensure the appearance of the alien at any future pro-
ceeding under this chapter; and
(B) not endanger the safety of any other individual or the commu-
nity.
(2) If the judge finds no such condition or combination of conditions, as
described in paragraph (1) of this subsection, the alien shall remain in cus-
tody until the completion of any appeal authorized by this chapter.
§ 6907. Custody and release after removal hearing
(a) RELEASE.—(1) Subject to paragraph (2) of this subsection, if the
judge decides that an alien should not be removed, the alien shall be re-
leased from custody.
(2) If the Attorney General takes an appeal from the decision, the alien
shall remain in custody, subject to section 3142 of title 18.
(b) CUSTODY AND REMOVAL.—(1) If the judge decides that an alien
should be removed, the alien shall be detained pending the outcome of any
appeal. After the conclusion of any judicial review that affirms the removal
order, the Attorney General shall retain the alien in custody and remove the
alien to a country specified under paragraph (2) of this subsection.
(2)(A) The removal of an alien shall be to any country the alien des-
ignates if the designation does not, in the judgment of the Attorney Gen-
eral, in consultation with the Secretary of State, impair the obligation of
the United States under any treaty (including a treaty on extradition) or
otherwise adversely affect the foreign policy of the United States.
(B) If the alien refuses to designate a country to which the alien wishes
to be removed or if the Attorney General, in consultation with the Secretary,
determines that removal of the alien to the designated country would impair
a treaty obligation or adversely affect United States foreign policy, the At-
torney General shall remove the alien to any country willing to receive the
alien.
257
(C) If no country is willing to receive the alien, the Attorney General may
retain the alien in custody. The Attorney General, in coordination with the
Secretary, shall make periodic efforts to reach agreement with other coun-
tries to accept the alien and at least every 6 months shall provide to the
attorney representing the alien at the removal hearing a written report on
the Attorney General’s efforts. An alien in custody under this subparagraph
shall be released from custody only at the discretion of the Attorney General
and subject to conditions the Attorney General considers appropriate.
(D) Before an alien is removed from the United States under this sub-
section, or under an order of removal because the alien is inadmissible
under section 6310(b) of this title, the alien shall be photographed and
fingerprinted, and shall be advised of the provisions of section 10149(a)(2)
of this title.
(c) CONTINUED DETENTION PENDING TRIAL.—(1) The Attorney General
may hold in abeyance the removal of an alien who has been ordered removed
under this chapter to allow the trial of the alien on a federal or state crimi-
nal charge and the service of any sentence of confinement resulting from
the trial.
(2) Pending the commencement of any service of a sentence of confine-
ment by an alien described in paragraph (1) of this subsection, the alien
shall remain in the custody of the Attorney General, unless the Attorney
General determines that temporary release of the alien to the custody of
state authorities for confinement in a state facility is appropriate and would
not endanger national security or public safety.
(3) Following the completion of a sentence of confinement by an alien de-
scribed in paragraph (1) of this subsection, or following the completion of
state criminal proceedings that do not result in a sentence of confinement
of an alien released to the custody of state authorities under paragraph (2)
of this subsection, the alien shall be returned to the custody of the Attorney
General, who shall proceed to the removal of the alien under this chapter.
(d) APPLICATION OF CERTAIN PROVISIONS RELATED TO ESCAPE OF
PRISONERS.—For purposes of sections 751 and 752 of title 18, an alien in
the custody of the Attorney General under this chapter is deemed to be in
custody by virtue of an arrest on a charge of a felony.
(e) RIGHTS OF ALIENS IN CUSTODY.—(1) An alien in the custody of the
Attorney General under this chapter shall be given reasonable opportunity,
as determined by the Attorney General, to communicate with and receive
visits from members of the alien’s family, and to contact, retain, and com-
municate with an attorney.
(2) An alien in the custody of the Attorney General under this chapter
has the right to contact an appropriate diplomatic or consular official of the
258
alien’s country of citizenship or nationality or of any country providing rep-
resentation services for the alien. The Attorney General shall notify the ap-
propriate embassy, mission, or consular office of the alien’s detention.
CHAPTER 71—TEMPORARY PROTECTED STATUS
Sec.
7101.
General.
7102.
Granting the status.
7103.
Designation of foreign countries.
7104.
Information and notices about status.
7105.
Temporary documentation and work authorization.
7106.
Registration fees.
7107.
Withdrawal of status.
7108.
Relationship to cancellation of removal.
7109.
Relationship to immigration status.
7110.
Immigration status and continuous physical presence not affected by temporary travel
outside the United States.
7111.
Exclusive remedy.
7112.
Limitation on Senate consideration of legislation adjusting status.
7113.
Annual reports.
§ 7101. General
The Attorney General may grant an alien temporary protected status in
the United States as provided in this chapter. During the period that the
status is in effect—
(1) the Attorney General may not detain the alien on the basis of
the alien’s immigration status in the United States;
(2) the Attorney General may not remove the alien from the United
States;
(3) the Attorney General shall authorize the alien to work in the
United States;
(4) the alien is not residing permanently in the United States under
color of law;
(5) a State or political subdivision of a State that provides public
assistance may find the alien ineligible for the assistance;
(6) the alien may travel outside the United States with the prior con-
sent of the Attorney General; and
(7) the alien is deemed to be maintaining lawful status as a non-
immigrant for purposes of sections 9101(f)(3) and 9108 of this title.
§ 7102. Granting the status
(a) GENERAL REQUIREMENTS FOR GRANTING.—The Attorney General
may grant temporary protected status in the United States to an alien
who—
(1) is a national of a foreign country designated, or designated in
part, under section 7103 of this title, or has no nationality but last ha-
bitually resided in such a county;
259
(2) has been physically present in the United States continuously
since the effective date of the most recent designation of that country
or part of that country under section 7103 of this title;
(3) has resided in the United States continuously since a date the
Attorney General may specify;
(4) is admissible as an immigrant, except that for purposes of this
clause—
(A) sections 4311(a) and 6301 of this title do not apply;
(B) the Attorney General may waive subchapter I of chapter 63
of this title (except as provided in subclause (C) of this clause)
for an individual alien for humanitarian purposes, to ensure family
unity, or when it is otherwise in the public interest; and
(C) the Attorney General may not waive section 6309(a)(1)–(4),
6310(a)–(c), or 6311 of this title, except as section 6309(a)(3) re-
lates to a single offense of simple possession of not more than 30
grams of marijuana; and
(5) registers for the temporary protected status during a registration
period of at least 180 days, to the extent and in the manner the Attor-
ney General establishes.
(b) PROHIBITIONS
ON GRANTING.—Notwithstanding subsection (a) of
this section, the Attorney General may not grant temporary protected status
to an alien if the Attorney General finds that the alien—
(1) has been convicted of a felony or more than one misdemeanor
committed in the United States; or
(2) is described in section 5106(b)(2)(A) of this title.
(c) BRIEF, CASUAL, AND INNOCENT ABSENCES.—(1) An alien does not
fail to maintain continuous physical presence in the United States under
subsection (a)(2) of this section or section 7107(2) of this title because of
a brief, casual, and innocent absence from the United States, whether or
not authorized by the Attorney General.
(2) An alien does not fail to maintain continuous residence in the United
States under subsection (a)(3) of this section because of a brief, casual, and
innocent absence from the United States, whether or not authorized by the
Attorney General, or because of a brief temporary trip outside the United
States required by emergency or extenuating circumstances beyond the
alien’s control.
(d) STATUS PENDING REGISTRATION OR FINAL DECISION.—(1) If an
alien can establish a prima facie case of eligibility for temporary protected
status under this chapter except that the period of registration under sub-
section (a)(5) of this section has not begun, the Attorney General shall pro-
vide the alien with the benefits of the status until the alien has had a rea-
260
sonable opportunity to register during the first 30 days of the registration
period.
(2) If an alien establishes a prima facie case of eligibility for temporary
protected status under this chapter, the Attorney General shall provide the
alien with the benefits of the status until a final decision is made on the
alien’s eligibility.
(e) CONFIDENTIALITY.—The Attorney General shall establish procedures
to protect the confidentiality of information provided by an alien under this
chapter.
(f) NO AUTHORIZATION TO APPLY FOR ADMISSION OR TO BE ADMIT-
TED.—This chapter does not authorize an alien to apply for admission, or
to be admitted, to the United States to apply for temporary protected status
under this chapter.
§ 7103. Designation of foreign countries
(a) GENERAL.—After consultation with the heads of appropriate federal
departments, agencies, or instrumentalities, the Attorney General may des-
ignate a foreign country or part of a foreign country under this section if
the Attorney General finds that—
(1) there is an armed conflict in the country that would pose a seri-
ous threat to the personal safety of nationals of that country if they
were required to return to that country or part of that country;
(2)(A) there has been an earthquake, flood, drought, epidemic, or
other environmental disaster in the country resulting in a substantial,
but temporary, disruption of living conditions in the area affected by
the disaster;
(B) the country temporarily is unable to handle returning nationals
adequately; and
(C) the government of the country officially has requested designa-
tion under this clause (2); or
(3) extraordinary and temporary conditions exist in the country that
prevent nationals from returning to that country in safety, unless the
Attorney General finds that permitting the aliens to remain temporarily
in the United States is contrary to the interest of the United States.
(b) PUBLICATION OF DESIGNATIONS.—A designation under subsection
(a) of this section is effective only if notice of the designation (including a
statement of the findings under subsection (a) and the effective date of the
designation) is published in the Federal Register. The Attorney General
shall include in the notice an estimate of the number of nationals of the
designated country who are, or within the effective period of the designation
are likely to become, eligible for temporary protected status under this chap-
ter and their immigration status in the United States.
261
(c) EFFECTIVE PERIOD OF DESIGNATIONS.—A designation under this
section—
(1) takes effect on the date the notice is published under subsection
(b) of this section or a later date the Attorney General specifies in the
notice; and
(2) remains in effect until terminated under subsection (d) of this
section.
(d) PERIODIC REVIEWS, EXTENSIONS, AND TERMINATIONS.—(1) The ini-
tial period of designation of a foreign country or part of a foreign country
is the period specified by the Attorney General. The period shall be at least
6 months but not more than 18 months.
(2) At least 60 days before the end of the initial period of designation
and any extended period of designation, the Attorney General, after con-
sultation with the heads of appropriate federal departments, agencies, and
instrumentalities, shall review the conditions in the designated country or
part of the country and decide whether the conditions for the designation
continue to be met.
(3)(A) If the Attorney General does not decide that the designated coun-
try or part of the country no longer meets the conditions for designation,
the designation is extended for 6 months or, in the discretion of the Attor-
ney General, for 12 or 18 months.
(B) If the Attorney General decides that the designated country or part
of the country no longer meets the conditions for designation, the Attorney
General shall terminate the designation. A termination is effective 60 days
after notice of the termination is published in the Federal Register or when
the most recent extension expires, whichever is later.
(4) The Attorney General shall publish in the Federal Register, on a
timely basis, notice of each decision under this subsection, including the
basis for the decision, and the period of any extension.
(e) INFORMATION ON PROTECTED STATUS AT TIME OF DESIGNATION.—
When the Attorney General designates a foreign country or part of a foreign
country under subsection (a) of this section, the Attorney General shall
make available to nationals of that country information on the temporary
protected status available under this chapter.
(f) ADMINISTRATIVE AND JUDICIAL REVIEW.—(1) The Attorney General
shall establish an administrative procedure to review a denial of benefits to
an alien under this section. The procedure may not prevent an alien from
asserting protection under this chapter in a removal proceeding if the alien
demonstrates that the alien is a national of a foreign country designated,
or designated in part, under this section.
262
(2) A designation, extension, or termination under this section is not sub-
ject to judicial review.
§ 7104. Information and notices about status
(a) INFORMATION ABOUT STATUS.—On granting temporary protected
status to an alien under this chapter, the Attorney General shall provide
the alien with information about the status.
(b) NOTICES OF AVAILABILITY AT DEPORTATION PROCEEDINGS.—The
Attorney General promptly shall notify an alien of the temporary protected
status that may be available under this chapter—
(1) if, when a removal proceeding is initiated against the alien, the
foreign country of which the alien is a national has been designated,
or designated in part, under section 7103 of this title; or
(2) if, during a removal proceeding pending against the alien, the
country of which the alien is a national is designated, or designated
in part, under section 7103 of this title.
(c) FORM AND LANGUAGE.—Information and notices under this section
shall be in a form and language the alien can understand.
§ 7105. Temporary documentation and work authorization
(a) GENERAL.—On granting temporary protected status to an alien under
this chapter, the Attorney General shall provide for the issuance of tem-
porary documentation and work authorization necessary to carry out this
chapter. The work authorization shall be an ‘‘employment authorized’’ en-
dorsement or other appropriate work permit.
(b) PERIOD OF VALIDITY.—(1) Work authorization issued under sub-
section (a) of this section is valid during the period the alien is in temporary
protected status under this chapter.
(2) Subject to subsection (c) of this section, the documentation and work
authorization are valid for the initial period of designation of the foreign
country or part of the foreign country involved and any extension of that
period. The Attorney General may stagger the periods of validity of the doc-
umentation and authorization to provide for an orderly renewal of the docu-
mentation and authorization and for an orderly transition under subsection
(c) when a designation is terminated.
(c) EFFECTIVE DATE OF TERMINATIONS.—A termination of a designa-
tion under section 7103(d)(3)(B) of this title applies only to documentation
and work authorization issued or renewed after—
(1) the effective date of the termination; or
(2) a later date the Attorney General decides is appropriate to pro-
vide for an orderly transition.
263
§ 7106. Registration fees
(a) ALLOWABLE FEES.—The Attorney General may require payment of
a reasonable fee of not more than $50 as a condition for registering an alien
under section 7102(a)(5) of this title and an additional fee for providing
a work authorization.
(b) CREDITING APPROPRIATION.—All fees collected under this section
shall be credited to the appropriation to be used to carry out this chapter.
§ 7107. Withdrawal of status
The Attorney General shall withdraw temporary protected status granted
to an alien under this chapter if—
(1) the Attorney General finds that the alien was not eligible for the
status;
(2) except as provided in sections 7101(6) and 7102(c) of this title,
the alien has not remained continuously physically present in the Unit-
ed States from the date the alien first was granted the status; or
(3) the alien, without good cause, does not register with the Attorney
General annually, at the end of each 12-month period after the status
is granted, in the form and manner specified by the Attorney General.
§ 7108. Relationship to cancellation of removal
Under section 6721(a) of this title, the period during which temporary
protected status is in effect for an alien—
(1) is not counted as a period of physical presence in the United
States unless the Attorney General decides that extreme hardship ex-
ists; and
(2) does not cause a break in the continuity of residence before and
after the period during which the alien has that status.
§ 7109. Relationship to immigration status
(a) GENERAL.—This chapter does not authorize the Attorney General to
deny temporary protected status to an alien based on the alien’s immigra-
tion status or to require an alien, as a condition of being granted temporary
protected status, to relinquish any other status the alien may have or to
waive any right under this title (except subchapter I of chapter 7, chapter
47, subchapters II and III of chapter 131, and chapters 133, 135, and
151).
(b) TEMPORARY PROTECTED STATUS NOT INCONSISTENT WITH NON-
IMMIGRANT STATUS.—Granting temporary protected status under this
chapter is not inconsistent with granting nonimmigrant status under this
title.
264
§ 7110. Immigration status and continuous physical pres-
ence not affected by temporary travel outside the
United States
An alien granted temporary protected status under this chapter whom the
Attorney General authorizes to travel outside the United States temporarily
and who returns to the United States according to the authorization—
(1) shall be inspected and admitted in the same immigration status
the alien had at the time of departure if the alien is found not to be
inadmissible on a ground referred to in section 7102(a)(4)(C) of this
title; and
(2) has not failed to maintain continuous physical presence in the
United States under section 6721(a) of this title because of the depar-
ture if the absence meets the requirements of section 6721(c).
§ 7111. Exclusive remedy
Except as otherwise specifically provided, this chapter provides the exclu-
sive authority of the Attorney General under law to allow an alien who is
or may become otherwise removable or who has been paroled into the Unit-
ed States to remain in the United States temporarily because of the alien’s
nationality or region of foreign country of nationality.
§ 7112. Limitation on Senate consideration of legislation ad-
justing status
(a) GENERAL.—Except as provided in subsection (b) of this section, it
is not in order in the Senate to consider a bill, resolution, or amendment
that—
(1) provides for the adjustment to lawful temporary or permanent
resident alien status for an alien receiving temporary protected status
under this chapter; or
(2) has the effect of amending or limiting the application of this sec-
tion.
(b) SUPERMAJORITY REQUIREMENT.—An affirmative vote of three-fifths
of the members of the Senate chosen and sworn is required to—
(1) waive or suspend subsection (a) of this section; or
(2) sustain an appeal of the ruling of the Chair on a point of order
raised under subsection (a) of this section.
(c) SENATE RULEMAKING POWER.—This section—
(1) is enacted as an exercise of the rulemaking power of the Senate;
(2) is deemed to be a part of the rules of the Senate on matters de-
scribed in subsection (a) of this section;
(3) supersedes other rules of the Senate only to the extent inconsist-
ent with this section; and
265
(4) is enacted with full recognition of the constitutional right of the
Senate to change those rules at any time in the same manner as any
other rule of the Senate.
§ 7113. Annual reports
(a) ATTORNEY GENERAL.—Not later than March 1 of each year, the At-
torney General, after consultation with the heads of appropriate federal de-
partments, agencies, and instrumentalities, shall submit to the Committees
on the Judiciary of the House of Representatives and the Senate a report
on the operation of this chapter during the prior year. The report shall in-
clude—
(1) a listing of foreign countries and parts of foreign countries des-
ignated under section 7103 of this title;
(2) the number of nationals of each country granted temporary pro-
tected status under this chapter and their immigration status before
being granted temporary protected status; and
(3) an explanation of why each foreign country or part of a foreign
country was designated under section 7103 of this title and why a des-
ignation was extended or terminated.
(b) COMMITTEE REPORTS.—Not later than 180 days after receiving a re-
port under subsection (a) of this section, the Committees on the Judiciary
of the House of Representatives and the Senate shall report to the House
and Senate, respectively, on oversight findings and legislation the applicable
Committee considers appropriate.
CHAPTER 73—ADDITIONAL REGULATION OF PERSONS
PROVIDING TRANSPORTATION
Sec.
7301.
Ports of entry for aircraft and civil air navigation regulation.
7302.
Lists of passengers.
7303.
Payment contingent on admission prohibited.
7304.
Detention and delivery of arriving aliens.
7305.
Duty to prevent unauthorized landing.
7306.
Carrier contracts for inspection and admission.
7307.
Prohibitions on bringing certain aliens to the United States.
7308.
Fees for inspecting passengers.
§ 7301. Ports of entry for aircraft and civil air navigation
regulation
The Attorney General by regulation may—
(1) designate as ports of entry for aliens arriving by aircraft in the
United States any of the ports of entry designated for civil aircraft
under section 2(b)(1)(A) of Public Law 103–272 (19 U.S.C.
1644a(b)(1)(A));
(2) require aircraft in civil air navigation to give notice of landing
or intention to land as necessary to carry out this title; and
266
(3) apply this title to civil air navigation to the extent the Attorney
General considers necessary.
§ 7302. Lists of passengers
(a) ARRIVING PASSENGERS.—An owner, agent, master, commanding offi-
cer, or consignee of a vessel or aircraft arriving in the United States from
a place outside the United States shall give an immigration officer at the
port of arrival a list of the passengers on the vessel or aircraft. The list
shall be prepared at the time, be in the form, and contain the information
the Attorney General prescribes by regulation as necessary to identify the
passengers and enforce the immigration laws.
(b) DEPARTING PASSENGERS.—(1) A master, commanding officer, or
agent of a vessel or aircraft taking on passengers in the United States who
are destined to a place outside the United States shall give an immigration
officer at the port a list of those passengers before departing. The list shall
be in the form, contain the information, and be accompanied by other docu-
mentation the Attorney General prescribes by regulation as necessary to
identify the passengers and enforce the immigration laws. The master, com-
manding officer, or agent shall state under oath that the list and accom-
panying documentation contain all of the required information.
(2) The vessel or aircraft may be cleared only after the master, command-
ing officer, or agent complies with paragraph (1) of this subsection. How-
ever, if the Attorney General decides that the vessel or aircraft is making
regular trips to ports of the United States, the Attorney General, when it
is expedient, may allow the master, commanding officer, or agent to give
the list and documentation at a later date.
(c) EXCEPTIONS.—Subsections (a) and (b) of this section do not require
that a list include—
(1) an alien crewmember; or
(2) except as required by regulations prescribed under section 7301
of this title, a passenger—
(A) arriving by air on a trip originating in foreign territory con-
tiguous to the United States; or
(B) departing by air on a trip originating in the United States
and destined for foreign territory contiguous to the United States.
(d) WAIVER.—The Attorney General may prescribe conditions under
which the requirements of this section may be waived.
§ 7303. Payment contingent on admission prohibited
An owner, agent, master, commanding officer, person in charge, purser,
or consignee of a vessel or aircraft bringing an alien (except an alien crew-
member) to the United States may not take any consideration to be kept
267
or returned contingent on whether the alien is admitted to, or ordered re-
moved from, the United States.
§ 7304. Detention and delivery of arriving aliens
An immigration officer may order an owner, agent, master, commanding
officer, person in charge, purser, or consignee of a vessel or aircraft bring-
ing an alien (except an alien crewmember) to the United States to—
(1) detain the alien on the vessel or at the airport of arrival; and
(2) deliver the alien to an immigration officer for inspection or to
a medical officer for examination.
§ 7305. Duty to prevent unauthorized landing
(a) GENERAL.—(1) A person bringing an alien to, or providing a means
for an alien to travel to, the United States (including an alien crewmember
not covered by section 2704(a) of this title) shall prevent the alien from
landing in the United States at—
(A) a port of entry not designated by the Attorney General; or
(B) a time or place not designated by an immigration officer.
(2) Proof that an alien did not appear at the time and place designated
by the immigration officer is prima facie evidence that the alien landed in
the United States at a time or place not designated by the immigration offi-
cer.
(3) This subsection does not apply to a carrier that has made a contract
as provided in section 7306(b) of this title.
(b) DILIGENCE DEFENSE.—(1) An owner or operator of a railroad line,
international bridge, or toll road that satisfies the Attorney General that the
owner or operator has acted diligently and reasonably to comply with sub-
section (a)(1) of this section is not liable for a penalty under section 10122
of this title for not complying with subsection (a)(1).
(2) On request of an owner or operator referred to in paragraph (1) of
this subsection, the Attorney General shall inspect a facility established, or
method used, by the owner or operator at a place of entry into the United
States to comply with subsection (a)(1) of this section. The Attorney Gen-
eral shall approve, for the period of time the Attorney General prescribes,
a facility or method the Attorney General decides is satisfactory to achieve
compliance.
(3) Proof that an owner or operator referred to in paragraph (1) of this
subsection has diligently maintained a facility, or used a method, approved
by the Attorney General under paragraph (2) of this subsection (during the
period the approval is in effect) is prima facie evidence that the owner or
operator acted diligently and reasonably to comply with subsection (a)(1) of
this section.
268
§ 7306. Carrier contracts for inspection and admission
(a) DEFINITION.—In this section, ‘‘carrier’’ includes the owner, agent,
charterer, or consignee operating a vessel, aircraft, or railroad train bring-
ing an alien to the United States, to foreign territory, or to an adjacent
island.
(b) CARRIER CONTRACTS.—(1) The Attorney General may make a con-
tract with a carrier for—
(A) the inspection and admission of aliens coming to the United
States from foreign territory or an adjacent island; or
(B) a guarantee of passage through the United States in immediate
and continuous transit of aliens destined for a foreign country.
(2) A carrier may not allow an alien coming from foreign territory or an
adjacent island to land in the United States unless the carrier has made
a contract required by the Attorney General under paragraph (1)(A) of this
subsection.
(c) LANDING STATIONS.—A carrier engaged in transporting alien pas-
sengers for compensation to the United States from foreign territory or an
adjacent island—
(1) shall provide and maintain at its expense suitable landing sta-
tions conveniently located at the places of entry in the United States;
and
(2) may land alien passengers in the United States only if the Attor-
ney General approves the landing stations and the maintenance of the
stations.
§ 7307. Prohibitions on bringing certain aliens to the United
States
(a) ALIENS NOT HAVING PASSPORTS AND VISAS.—A person may not
bring to the United States (except from a foreign territory contiguous to
the United States) an alien who does not have a passport and a visa, if a
visa is required by this title or regulations prescribed under this title.
(b) ALIENS INADMISSIBLE BECAUSE OF HEALTH.—(1) An owner, agent,
master, commanding officer, charterer, or consignee of a vessel or aircraft
may not bring to the United States an alien who is inadmissible under sec-
tion 6304 of this title.
(2) Paragraph (1) of this subsection does not apply if—
(A) the alien is a crewmember;
(B) the alien is allowed to land in the United States;
(C) the alien is in possession of an immigrant visa;
(D) the alien is in possession of a nonimmigrant visa or other docu-
mentation authorizing the alien to apply for temporary admission to
269
the United States and applies for admission within 120 days after the
date the visa or documentation was issued;
(E) the alien is in possession of a reentry permit and applies for ad-
mission within 120 days after the date of the alien’s last inspection and
admission;
(F)(i) the alien is in possession of a nonimmigrant visa or other doc-
umentation authorizing the alien to apply for temporary admission to
the United States or a reentry permit;
(ii) the alien applies for admission more than 120 days after the date
the visa or documentation was issued or after the date of the last in-
spection and admission under the reentry permit; and
(iii) the owner, agent, master, commanding officer, charterer, or con-
signee of the vessel or aircraft satisfies the Attorney General that the
existence of the condition causing inadmissibility could not have been
discovered by exercising due diligence before the alien boarded the ves-
sel or aircraft; or
(G) the alien is entitled by law to exemption from the grounds of
inadmissibility in chapter 63 of this title.
§ 7308. Fees for inspecting passengers
(a) FEES.—In addition to any other fee authorized by law, the Attorney
General shall charge and collect $6 for the immigration inspection of each
passenger arriving at a port of entry in the United States, or for the
preinspection of each passenger in a place outside the United States before
arrival, on a commercial vessel or commercial aircraft. However, that fee
may not be charged and collected for—
(1) a passenger on a commercial vessel if the passenger’s journey
originated in Canada, Mexico, a territory or possession of the United
States, or an adjacent island; or
(2) a passenger in transit to a destination outside the United States
and for whom immigration inspection services are not provided.
(b) COLLECTION.—(1) A person issuing a document or ticket to an indi-
vidual for transportation on a commercial vessel or commercial aircraft to
the United States shall—
(A) collect from the individual the fee charged under subsection (a)
of this section when the document or ticket is issued; and
(B) identify on that document or ticket the fee charged under sub-
section (a) of this section as a federal inspection fee.
(2) If a document or ticket for transportation of a passenger to the Unit-
ed States is issued in a foreign country and the fee charged under sub-
section (a) of this section is not collected when the document or ticket is
issued, the person providing the transportation shall collect the fee when the
270
passenger departs from the United States and give the passenger a receipt
for payment of the fee.
(3) The person collecting a fee under this section shall pay the fee to the
Attorney General within 30 days after the end of the calendar quarter in
which the fee is collected, except that—
(A) the 4th quarter payment for fees collected from passengers on
commercial aircraft shall be paid on the 10th day before the end of
the fiscal year; and
(B) the first quarter payment shall include any collections made in
the prior quarter that were not paid with the prior payment.
(4) Fees collected under this section shall be deposited as offsetting re-
ceipts in the Treasury in the Immigration User Fee Account established
under section 345 of this title.
(c) REGULATIONS.—Regulations prescribed by the Attorney General for
the collection of fees and payment of those fees under this section shall be
consistent with regulations prescribed by the Secretary of the Treasury for
the collection and remittance of taxes imposed by subchapter C of chapter
33 of the Internal Revenue Code of 1986 (26 U.S.C. ch. 33, subch. C), but
only to the extent the latter regulations are not inconsistent with this sec-
tion.
PART E—ADDITIONAL REQUIREMENTS AND
LIMITATIONS
CHAPTER 81—REGISTRATION AND FINGERPRINTING
Sec.
8101.
Registration and fingerprinting requirements.
8102.
Forms and oath.
8103.
Certificates of alien registration and alien registration receipt cards.
8104.
Address notification.
8105.
Confidentiality of records.
§ 8101. Registration and fingerprinting requirements
(a) GENERAL REQUIREMENTS.—Except as provided in subsection (c) of
this section—
(1) an alien applying for a visa shall be registered and shall provide
signed copies of a photograph of the alien to be used as prescribed by
regulation;
(2) an alien at least 14 years of age who remains in the United
States for at least 30 days and has not been registered and
fingerprinted under clause (1) of this subsection or section 30 or 31
of the Alien Registration Act, 1940, shall apply for registration and
fingerprinting within those 30 days;
(3) if an alien less than 14 years of age remains in the United States
for at least 30 days and has not been registered under clause (1) of
271
this subsection, the parent or legal guardian of the alien shall apply
for registration of the alien within those 30 days; and
(4) an alien who becomes 14 years of age in the United States shall
apply for registration and fingerprinting within 30 days after becoming
14 years of age.
(b) SPECIAL REQUIREMENTS FOR CERTAIN ALIENS.—The Attorney Gen-
eral may prescribe special regulations and forms for registering and
fingerprinting—
(1) alien crewmembers;
(2) holders of border crossing identification cards;
(3) aliens confined in institutions in the United States;
(4) aliens under order of removal;
(5) aliens who are or have been on criminal probation or criminal
parole in the United States; and
(6) aliens not lawfully admitted for permanent residence.
(c) WAIVERS AND NONAPPLICATION.—(1) The Secretary of State may
waive subsection (a)(1) of this section for an alien described in section 2301
or 2302 of this title or an alien issued a diplomatic visa on a diplomatic
passport or on equivalent documentation.
(2) On a reciprocal basis, the Attorney General may waive the
fingerprinting requirement of subsection (a)(2)–(4) of this section for a non-
immigrant.
(3) Subsections (a)(2)–(4) and (b) of this section do not apply to an alien
who has the status of a nonimmigrant classified under section 2301 or 2302
of this title.
§ 8102. Forms and oath
(a) FORMS.—The Attorney General and Secretary of State jointly shall
prepare forms for registering aliens under section 8101(a)(1) of this title.
The Attorney General shall prepare forms for registering and fingerprinting
aliens under section 8101(a)(2)–(4) of this title. The forms shall request in-
formation on—
(1) the date and place of entry of the alien into the United States;
(2) activities and intended activities of the alien;
(3) the period of time the alien expects to remain in the United
States;
(4) any police and criminal records of the alien; and
(5) additional information as prescribed.
(b) OATH.—Information required for registration under this chapter shall
be given under oath. An individual authorized by regulations prescribed by
the Attorney General to register aliens under this chapter may administer
the oath.
272
§ 8103. Certificates of alien registration and alien registra-
tion receipt cards
(a) ISSUANCE.—An alien in the United States who has been registered
and fingerprinted under this chapter or the Alien Registration Act, 1940,
shall be issued a certificate of alien registration or an alien registration re-
ceipt card in the form and way, and at the time, the Attorney General pre-
scribes by regulation.
(b) CARD TO BE CARRIED.—An alien at least 18 years of age shall carry
at all times the certificate of alien registration or alien registration receipt
card issued to the alien under this section.
§ 8104. Address notification
(a) NOTICE OF CHANGE OF ADDRESS.—Each alien in the United States
who is required to register under this chapter shall—
(1) notify the Attorney General in writing of each new address of
the alien within 10 days after the date of a change of address; and
(2) provide with the notice additional information the Attorney Gen-
eral may require by regulation.
(b) NOTICE OF NATIVES’ CURRENT ADDRESSES.—The Attorney General
may require, on 10 days’ notice, the natives of a foreign country or a class
or group of natives of a foreign country who are in the United States and
required to register under this chapter to notify the Attorney General of
their current addresses and to provide the Attorney General additional in-
formation the Attorney General may require.
(c) NOTICE FOR ALIENS LESS THAN 14 YEARS OF AGE.—A parent or
legal guardian of an alien less than 14 years of age who is required to reg-
ister shall be given the notice required by this section.
§ 8105. Confidentiality of records
A registration or fingerprinting record made under this chapter is con-
fidential and may be made available only to—
(1) federal, state, and local law enforcement agencies; and
(2) persons and agencies the Attorney General designates.
CHAPTER 83—MISCELLANEOUS
Sec.
8301.
Notice of denial of visa, admission, or adjustment of status.
8302.
Discontinuing issuance of visas when country denies or delays accepting alien.
8303.
Restriction on immigration of officers and employees of foreign governments and inter-
national organizations.
8304.
Ineligibility of section 2312 nonimmigrants for certain benefits.
8305.
Federal assistance in incarcerating undocumented criminal aliens.
8306.
Reimbursement of certain expenses.
273
§ 8301. Notice of denial of visa, admission, or adjustment of
status
(a) GENERAL.—If a consular officer or an immigration officer denies an
alien’s application for a visa or admission to the United States because the
officer finds the alien to be inadmissible under section 2121(a), 4104(g), or
4311(a) or subchapter I of chapter 63 of this title, or denies an application
for adjustment of status because the officer finds the alien to be ineligible
for the adjustment because of the application of section 9106 of this title,
the officer shall provide the alien with a timely written notice of the denial.
The notice shall state the decision and list the specific provisions of law on
which the denial is based.
(b) WAIVER.—The Secretary of State may waive subsection (a) of this
section for an alien or for a class of inadmissible aliens.
(c) NONAPPLICATION.—Subsection (a) of this section does not apply to
an alien inadmissible under section 6309(a)(1), (2), (3), (4), (5), or (7),
6310, or 6311 of this title.
§ 8302. Discontinuing issuance of visas when country denies
or delays accepting alien
On being notified by the Attorney General that the government of a for-
eign country denies or unreasonably delays accepting an alien who is a citi-
zen, subject, national, or resident of that country after the Attorney General
asks whether the government will accept the alien under section 6716 of this
title, the Secretary of State shall order consular officers in that foreign
country to discontinue granting immigrant visas, nonimmigrant visas, or
both, to citizens, subjects, nationals, and residents of that country until the
Attorney General notifies the Secretary that the country has accepted the
alien.
§ 8303. Restriction on immigration of officers and employees
of foreign governments and international organi-
zations
An officer or employee of a government of a foreign country or an inter-
national organization, and an attendant, servant, employee, or member of
the immediate family of the officer or employee, may apply for and be is-
sued an immigrant visa and be admitted to the United States as an immi-
grant only after executing the same waiver as provided in section 9105(c)(2)
of this title.
§ 8304. Ineligibility of section 2312 nonimmigrants for cer-
tain benefits
(a) INELIGIBILITY.—An alien admitted to the United States as a non-
immigrant classified under section 2312 of this title, or provided status as
a nonimmigrant classified under section 2312 after admission, is ineligible
274
to apply for an immigrant visa, permanent residence, or a nonimmigrant
visa under any of sections 2313–2317 and 2325 of this title until it is estab-
lished that the alien has resided and been physically present in the foreign
country of the alien’s nationality or last residence for a total of at least 2
years after leaving the United States, if—
(1) the alien’s participation in the program for which the alien came
to the United States was financed, directly or indirectly, in any part
by the Federal Government or by the government of the foreign coun-
try of the alien’s nationality or last residence;
(2) the alien, at the time the alien was admitted or provided status
as a nonimmigrant classified under section 2312 of this title, was a na-
tional or resident of a foreign country that the Director of the United
States Information Agency (under regulations the Director prescribed)
designated as clearly requiring the services of individuals engaged in
the alien’s field of specialized knowledge or skill; or
(3) the alien came to the United States or acquired status as a non-
immigrant classified under section 2312 of this title to receive graduate
medical education or training.
(b) WAIVERS.—Except as provided in subsection (c) of this section, the
Attorney General may waive the 2-year residence requirement of subsection
(a) of this section if the Attorney General finds that admitting the alien
would be in the public interest, after receiving a favorable recommendation
from—
(1) the Director—
(A) because of a request from the head of an interested federal
department, agency, or instrumentality or, in the case of an alien
described in subsection (a)(3) of this section, a request from a
State Department of Public Health or its equivalent; or
(B) if the foreign country of the alien’s nationality or last resi-
dence provides the Director with a written statement that it does
not object to the waiver, except that this subclause does not apply
to an alien described in subsection (a)(3) of this section; or
(2) the Commissioner of Immigration and Naturalization if the Com-
missioner finds that—
(A) departure from the United States would impose exceptional
hardship on the alien’s spouse or child when the spouse or child
is a citizen of the United States or lawfully admitted for perma-
nent residence; or
(B) the alien would be subject to persecution on account of race,
religion, or political opinion if the alien returned to the foreign
country of the alien’s nationality or last residence.
275
(c) RESTRICTION ON WAIVER REQUESTS.—(1) The Attorney General
may grant a waiver requested under subsection (b) of this section by a State
Department of Public Health, or its equivalent, or by the head of an inter-
ested federal department, agency, or instrumentality, for an alien described
in subsection (a)(3) of this section only if—
(A) in the case of an alien contractually obligated to return to a for-
eign country, the government of the country provides the Director with
a written statement that the country does not object to the waiver;
(B) in the case of a request by a State Department of Public Health
or its equivalent, the grant of the waiver would not cause the number
of waivers allotted for that State for that fiscal year to exceed 20;
(C) the alien demonstrates an offer of full-time employment at a
health facility or health care organization, the Attorney General decides
that the employment is in the public interest, and the alien agrees—
(i) to begin employment at the facility or organization not later
than 90 days after receiving the waiver; and
(ii) to continue to work for at least 3 years unless the Attorney
General decides that extenuating circumstances such as the clo-
sure of the facility or hardship to the alien justifies a shorter pe-
riod of time, in which case the alien must demonstrate another
offer of employment at a health facility or health care organization
for the remainder of the 3-year period; and
(D) except in the case of a request by the head of the interested fed-
eral department, agency, or instrumentality to employ the alien full-
time in medical research or training, the alien agrees to practice medi-
cine as provided in paragraph (2) of this subsection for at least 3 years
only in geographic areas the Secretary of Health and Human Services
designates as having a shortage of health care professionals.
(2)(A) Notwithstanding section 9108(b)(3) of this title, the Attorney Gen-
eral may change the status of an alien who qualifies under this subsection
and subsection (a) of this section to that of a nonimmigrant classified under
section 2313 of this title.
(B) An alien who has acquired a change of status under subparagraph
(A) of this paragraph and who has not fulfilled the terms of a contract with
the health facility or health care organization is ineligible to apply for an
immigrant visa, for permanent residence, or for any other change of non-
immigrant status until it is established that the alien has resided and been
physically present in the foreign country of the alien’s nationality or last
residence for a total of at least 2 years after leaving the United States.
(C) The 2-year foreign residence requirement under subsection (a) of this
section applies to an alien described in subsection (a)(3) of this section (ex-
276
cept a special immigrant under section 133(a)(8) of this title) and the waiv-
er granted that alien under subsection (b) of this section is revoked if—
(i) the alien does not comply at any time with an agreement made
under paragraph (1)(C) or (D) of this subsection; or
(ii) the alien’s employment does not benefit the public interest at any
time during the 3-year period described in paragraph (1)(C) of this
subsection.
§ 8305. Federal assistance in incarcerating undocumented
criminal aliens
(a) DEFINITION.—In this section, ‘‘undocumented criminal alien’’ means
an alien who—
(1) has been convicted of a felony or at least 2 misdemeanors; and
(2)(A) entered the United States without inspection or at a time or
place not designated by the Attorney General;
(B) was the subject of an exclusion or deportation proceeding when
taken into custody by a State or political subdivision of a State; or
(C) was admitted as a nonimmigrant and, when taken into custody
by a State or political subdivision of a State—
(i) had not maintained the nonimmigrant status under which
the alien was admitted or which the alien acquired under section
9108 of this title; or
(ii) had not complied with a condition of the nonimmigrant sta-
tus.
(b) FEDERAL GOVERNMENT RESPONSIBILITIES.—(1) If the chief execu-
tive officer of a State (or, if appropriate, a political subdivision of a State)
exercising authority for the incarceration of an undocumented criminal alien
submits a written request to the Attorney General, the Attorney General,
as the Attorney General decides, shall—
(A) make a contract providing for compensation to the State or po-
litical subdivision of the State, as appropriate, for incarceration of the
alien; or
(B) take the alien into the custody of the Federal Government and
incarcerate the alien.
(2) Compensation under paragraph (1)(A) of this subsection shall be the
average cost of incarceration of a prisoner in the relevant State as deter-
mined by the Attorney General.
(3)(A) In carrying out paragraph (1) of this subsection, the Attorney
General shall give priority to the Government’s incarceration of undocu-
mented criminal aliens who have committed an aggravated felony.
(B) The Attorney General shall ensure that undocumented criminal aliens
incarcerated in Government facilities under this section are held in facilities
277
that provide a level of security appropriate to the offenses of which they
were convicted.
(c) USE OF AMOUNTS.—To the extent of available appropriations, the re-
cipient of amounts otherwise made available under this section to a State
or a political subdivision, including a municipality, of a State for incarcer-
ation of an undocumented criminal alien may use the amounts for the costs
of imprisoning the alien in a state, local, or municipal prison or jail.
(d) AUTHORIZATION OF APPROPRIATIONS.—(1) Amounts necessary to
carry out this section may be appropriated. Of those amounts, the following
amounts may be appropriated from the Violent Crime Reduction Trust
Fund:
(A) $350,000,000 for the fiscal year ending September 30, 1998.
(B) $350,000,000 for the fiscal year ending September 30, 1999.
(C) $340,000,000 for the fiscal year ending September 30, 2000.
(2) Beginning October 1, 2004, the requirements of this section are not
subject to the availability of appropriations.
§ 8306. Reimbursement of certain expenses
(a) MEDICAL ASSISTANCE FOR CARE AND TREATMENT OF EMERGENCY
MEDICAL CONDITION.—(1) In this section, ‘‘emergency medical condition’’
means a medical condition (including emergency labor and delivery) mani-
festing itself by acute symptoms of sufficient severity (including severe pain)
such that the absence of immediate medical attention reasonably could be
expected to result in—
(A) placing the patient’s health in serious jeopardy;
(B) serious impairment to bodily functions; or
(C) serious dysfunction of any bodily organ or part.
(2) Subject to amounts provided in advance in an appropriation law, each
State or political subdivision of a State that after December 31, 1996, pro-
vides medical assistance for care and treatment of an emergency medical
condition through a public hospital or other public facility (including a non-
profit hospital that is eligible for an additional payment adjustment under
section 1886 of the Social Security Act (42 U.S.C. 1395ww)) or through
a contract with another hospital or facility to an alien not lawfully present
in the United States is eligible for payment from the Federal Government
of its costs of providing the services that are not reimbursed otherwise
through any other federal program and that cannot be recovered from the
alien or another person.
(3) Payment may be made under this subsection only after the immigra-
tion status of the alien has been verified through appropriate procedures es-
tablished by the Secretary of Health and Human Services and the Attorney
General.
278
(4) The Attorney General, in consultation with the Secretary, shall carry
out this subsection.
(b) EMERGENCY AMBULANCE SERVICES.—Subject to available appropria-
tions, the Attorney General shall reimburse each State and political subdivi-
sion of that State completely for costs the State or subdivision incurs for
emergency ambulance services provided to an alien who—
(1) is injured while crossing a land or sea border of the United
States without inspection or at any time or place except as designated
by the Attorney General; and
(2) is under the custody of the State or subdivision pursuant to a
transfer, request, or other action by a federal authority.
PART F—ADJUSTMENT AND CHANGE OF STATUS
CHAPTER 91—ADJUSTMENT AND CHANGE OF STATUS
Sec.
9101.
Aliens inspected and admitted or paroled into the United States.
9102.
Aliens who entered the United States without inspection and certain other aliens.
9103.
Aliens admitted as foreign government officials and their families.
9104.
Aliens entering the United States before January 1, 1972.
9105.
Aliens lawfully admitted for permanent residence.
9106.
Additional requirements for aliens adjusting to certain employment-based immigrant
status.
9107.
Rescission of adjustment of status to alien lawfully admitted for permanent residence.
9108.
Change of status.
§ 9101. Aliens inspected and admitted or paroled into the
United States
(a) REQUIREMENTS.—Except as provided in subsections (e)–(g) of this
section, the Attorney General may adjust the status of an alien inspected
and admitted or paroled into the United States to that of an alien lawfully
admitted for permanent residence if—
(1) the alien applies for the adjustment, is eligible to receive an im-
migrant visa, and is admissible to the United States for permanent res-
idence; and
(2) an immigrant visa is immediately available to the alien when the
application for adjustment is filed.
(b) RECORDATION OF ADJUSTMENT.—On approving an application for
adjustment of status under subsection (a) of this section, the Attorney Gen-
eral shall record the lawful admission of the alien for permanent residence
as of the date of approval.
(c) REDUCTION IN NUMBER OF AUTHORIZED IMMIGRANT VISAS.—For
each alien lawfully admitted for permanent residence under this section, the
Secretary of State shall reduce by one the number of immigrant visas that
may be issued under sections 4103–4105 and 4110 of this title within the
class to which the alien is chargeable for the current fiscal year.
279
(d) APPLICATION TO CERTAIN SPECIAL IMMIGRANTS.—(1) In applying
this section to a special immigrant as defined in section 133(a)(12) of this
title—
(A) the alien is deemed to have been paroled into the United States;
(B) when the Attorney General is deciding on the alien’s admissibil-
ity as an immigrant—
(i) sections 4311(a), 6301(a)(2) and (b), 6306(a)–(c), and 9106
of this title do not apply;
(ii) the Attorney General may waive subchapter I of chapter 63
of this title (except as provided in subclause (iii) of this clause)
for an alien for humanitarian purposes, to ensure family unity, or
when it is otherwise in the public interest; and
(iii) the Attorney General may not waive section 6309(a)(1)–(4),
6310(a)–(c), or 6311 of this title, except as section 6309(a)(3) re-
lates to a single offense of simple possession of not more than 30
grams of marijuana;
(C) the relationship between an alien and the alien’s natural parents
or prior adoptive parents is not a factor in making a waiver under
clause (B)(ii) of this paragraph; and
(D) this paragraph and section 133(a)(12) of this title do not au-
thorize an alien to apply for admission or be admitted to the United
States to obtain the special immigrant status as defined in section
133(a)(12).
(2) In applying this section to a special immigrant as defined in section
133(a)(13) of this title, the alien is deemed to have been paroled into the
United States.
(e) APPLICATION
TO NONIMMIGRANTS CLASSIFIED UNDER SECTION
2326.—(1) The Attorney General may adjust the status of an alien admit-
ted to the United States as a nonimmigrant classified under section
2326(a)(1) of this title (and the spouse, married and unmarried sons and
daughters, and parents of the alien if admitted under section 2326(a)(1))
to that of an alien lawfully admitted for permanent residence if—
(A) the alien is not described in section 6311 of this title; and
(B) the Attorney General finds the nonimmigrant has supplied infor-
mation described in section 2326(a)(1)(A) of this title and providing
that information has contributed substantially to the success of an au-
thorized criminal investigation or the prosecution of an individual de-
scribed in section 2326(a)(1)(C) of this title.
(2) The Attorney General may adjust the status of an alien admitted to
the United States as a nonimmigrant classified under section 2326(a)(2) of
this title (and the spouse, married and unmarried sons and daughters, and
280
parents of the alien if admitted under section 2326(a)(2)) to that of an
alien lawfully admitted for permanent residence if—
(A) the alien is not described in section 6311 of this title;
(B) the Attorney General finds the nonimmigrant has supplied infor-
mation described in section 2326(a)(2)(A) of this title and providing
that information has contributed substantially to—
(i) the prevention or frustration of an act of terrorism against
a person or property of the United States; or
(ii) the success of an authorized criminal investigation of, or the
prosecution of, an individual involved in the act of terrorism; and
(C) the nonimmigrant has received a reward under section 36(a) of
the State Department Basic Authorities Act of 1956 (22 U.S.C.
2708(a)).
(3) Only the Attorney General may make a finding under paragraph (2)
of this subsection.
(4) On approving an adjustment of status under this subsection, the At-
torney General shall record the alien’s lawful admission for permanent resi-
dence as of the date of approval and the Secretary shall reduce by one the
number of visas authorized to be issued under sections 4102(b)(1) and
4104(e) of this title for the current fiscal year.
(f) NONAPPLICATION.—Subsection (a) of this section does not apply to—
(1) an alien crewmember;
(2) an alien admitted in immediate and continuous transit without
a visa under section 2121(c)(3) of this title;
(3) an alien (except an immediate relative and a special immigrant
as defined in section 133(a)(8)–(13) of this title) who—
(A) after January 1, 1977, and before applying for an adjust-
ment of status, engages in or accepts unauthorized employment;
(B) has an unlawful immigration status on the date of filing the
application for an adjustment of status; or
(C) except through no fault of the alien or for technical reasons,
has not maintained continuously a lawful status since entering the
United States;
(4) an alien (except an immediate relative) admitted as a non-
immigrant visitor without a visa under section 2121(d) or 2128 of this
title; or
(5) an alien who was admitted as a nonimmigrant classified under
section 2326 of this title;
(6) an alien deportable under section 6508(b) of this title;
281
(7) an alien who is seeking adjustment of status to that of an immi-
grant under section 4104 of this title and who is not in a lawful non-
immigrant status; or
(8) an alien who was employed while the alien was an unauthorized
alien, as defined in section 11101 of this title, or who otherwise has
violated the terms of a nonimmigrant visa.
(g) ALIENS WHOSE STATUS MAY NOT BE ADJUSTED.—(1) The Attorney
General may not adjust, under subsection (a) of this section, the status of—
(A) an alien lawfully admitted for permanent residence on a condi-
tional basis under subchapter I of chapter 45 of this title;
(B) a nonimmigrant classified under section 2309(a) of this title, ex-
cept to that of an alien lawfully admitted for permanent residence on
a conditional basis under subchapter I of chapter 45 of this title, be-
cause of the marriage of the nonimmigrant (or, if a child, the parent)
to the citizen who filed the petition under section 2309(b) of this title;
or
(C) an alien seeking an immigrant visa because of a marriage en-
tered into during the period an administrative or judicial proceeding on
the alien’s right to be admitted to or remain in the United States is
pending.
(2)(A) Paragraph (1)(C) of this subsection does not apply to a marriage
if the alien establishes by clear and convincing evidence satisfactory to the
Attorney General that—
(i) the marriage was entered into in good faith and under the laws
of the place where the marriage took place;
(ii) the marriage was not entered into to procure the alien’s admis-
sion as an immigrant; and
(iii) no consideration was given, except to an attorney for assistance
in preparing a petition, for filing a petition under section 2309(b) or
4301(a) or (b) of this title for an alien spouse or alien son or daughter.
(B) Under regulations of the Attorney General, the Attorney General
shall allow only one level of administrative appellate review for each alien
under this paragraph.
§ 9102.
Aliens who entered the United States without in-
spection and certain other aliens
(a) WHO MAY APPLY.—An alien physically present in the United States
who entered the United States without inspection or who is described in sec-
tion 9101(f) of this title may apply to the Attorney General to adjust the
status of the alien to that of an alien lawfully admitted for permanent resi-
dence.
282
(b) ACCEPTANCE OF APPLICATION.—(1) The Attorney General may ac-
cept the application only if the alien remits $1,000 with the application. The
amount required under this subsection is in addition to the fee normally re-
quired for processing an application under section 9101 of this title.
(2) This subsection does not apply to—
(A) a child who is less than 17 years of age; or
(B) an alien who—
(i) is the spouse or unmarried child of an individual who at any
time became lawfully admitted for temporary or permanent resi-
dence under chapter 93 of this title, section 210 of the Immigra-
tion and Nationality Act, or section 202 of the Immigration Re-
form and Control Act of 1986 (Public Law 99–603, 100 Stat.
3404);
(ii) was the spouse or unmarried child of that individual on May
5, 1988;
(iii) 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
(iv) applied for benefits under section 301(a) of the Immigra-
tion Act of 1990 (Public Law 101–649, 104 Stat. 5029).
(c) ADJUSTMENT MADE.—On receiving the application and the required
amount, the Attorney General may adjust the status of the alien to that
of an alien lawfully admitted for permanent residence if—
(1) the alien is eligible to receive an immigrant visa and is admissible
to the United States for permanent residence; and
(2) an immigrant visa is available to the alien immediately when the
application is filed.
(d) DISPOSAL OF AMOUNTS.—(1) The part of each application fee (but
not more than $200) remitted under this section that the Attorney General
decides is required to process an application under this section shall be dis-
posed of by the Attorney General as provided in section 346 of this title.
(2) The Attorney General shall deposit the remainder of the fee in the
Immigration Detention Account established under section 348 of this title.
(e) FINGERPRINT IDENTIFICATION CHECKS.—The Commissioner of Im-
migration and Naturalization shall conduct complete fingerprint identifica-
tion checks through the Federal Bureau of Investigation for all individuals
over 16 years of age who are adjusting their immigration status under this
section.
(f) ENDING DATE.—This section ends on October 1, 1997.
283
§ 9103. Aliens admitted as foreign government officials and
their families
(a) REQUIREMENTS.—An alien admitted to the United States as a non-
immigrant classified under section 2301(1) or (2) or 2302(1), (2), or (3)
of this title, who does not maintain nonimmigrant status under any of those
provisions, may apply to the Attorney General to adjust the status of the
alien to that of an alien lawfully admitted for permanent residence. After
consulting with the Secretary of State, the Attorney General may adjust the
status of the alien if the Attorney General is satisfied that—
(1) the alien has demonstrated compelling reasons why the alien can-
not return to the country represented by the government that accred-
ited the alien or a member of the alien’s immediate family and that
adjusting the status of the alien is in the interest of the United States;
(2) the alien is of good moral character;
(3) the alien is admissible for permanent residence under this title;
and
(4) adjusting the alien’s status under this subsection would not be
contrary to the welfare, safety, or security of the United States.
(b) RECORDATION OF ADJUSTMENT AND REPORT TO CONGRESS.—If the
Attorney General adjusts the status of an alien under subsection (a) of this
section, the Attorney General—
(1) may record the lawful admission of the alien for permanent resi-
dence as of the date of the adjustment; and
(2) shall submit to Congress, on the first day of the next month in
which Congress is in session—
(A) a complete and detailed report of the facts and law in the
alien’s case; and
(B) the Attorney General’s reasons for the adjustment.
(c) REDUCTION IN NUMBER OF IMMIGRANT VISAS.—(1) For each alien
lawfully admitted for permanent residence under this section, the Secretary
shall reduce by one the number of immigrant visas for the foreign country
to which the alien is chargeable under section 4111 of this title for the cur-
rent fiscal year or the next fiscal year in which a visa is available if the
alien was classifiable as an immigrant subject to the numerical limitations
of sections 4102–4105 and 4110 of this title when the alien entered the
United States.
(2) The Secretary may not reduce the numerical limitations for the for-
eign country under this section by more than 50 percent in a fiscal year.
(d) NUMERICAL LIMITATION.—The Attorney General may admit as aliens
lawfully admitted for permanent residence under this section not more than
50 aliens in a fiscal year.
284
§ 9104. Aliens entering the United States before January 1,
1972
(a) REQUIREMENTS.—On approval of an application of an alien, the At-
torney General may adjust the status of the alien to that of an alien law-
fully admitted for permanent residence if—
(1) a record of the lawful admission of the alien for permanent resi-
dence is not available; and
(2) the alien satisfies the Attorney General that the alien—
(A) entered the United States before January 1, 1972, and has
resided in the United States continuously since the alien’s entry;
(B) is of good moral character;
(C) is not ineligible for citizenship and is not deportable under
section 6508(b) of this title; and
(D) is not inadmissible under—
(i) section 6311 of this title; or
(ii) a provision of subchapter I of chapter 63 of this title
related to criminals, immoral individuals, violators of narcotic
laws, smugglers of aliens, or national security.
(b) RECORDATION OF ADJUSTMENT.—If the Attorney General adjusts
the status of an alien under subsection (a) of this section, the Attorney Gen-
eral shall record the lawful admission of the alien for permanent residence
as of the date—
(1) the alien entered the United States if the alien entered before
July 1, 1924; or
(2) the Attorney General approves the alien’s application for an ad-
justment of status under this section.
(c) PHOTOGRAPHS.—An alien applying for an adjustment of status under
this section must provide the Attorney General with 3 identical photographs
of the alien.
(d) NONAPPLICATION OF NUMERICAL LIMITATIONS.—The numerical lim-
itations of sections 4102 and 4110 of this title do not apply to an alien
whose status is adjusted under this section.
§ 9105. Aliens lawfully admitted for permanent residence
(a) ADJUSTMENT TO NONIMMIGRANT STATUS.—Except as provided in
subsection (c) of this section, the Attorney General shall adjust the status
of an alien lawfully admitted for permanent residence to that of a non-
immigrant classified under section 2301, 2302, or 2306 of this title if at
the time of admission or after the alien is admitted to the United States
the alien is engaged in an occupation that would entitle the alien to the sta-
tus of a nonimmigrant classified under section 2301, 2302, or 2306 if the
alien were seeking to be admitted to the United States.
285
(b) RECORD OF ADMISSION FOR PERMANENT RESIDENCE CANCELED.—
The Attorney General shall cancel the record of the admission of the alien
for lawful permanent residence as of the date the Attorney General adjusts
the alien’s status under this section.
(c) NONAPPLICATION.—This section does not apply to an alien who—
(1) requests the Attorney General not to adjust the alien’s status
under this section; and
(2) files with the Attorney General a written waiver of the rights,
privileges, exemptions, and immunities that the alien otherwise would
be entitled to under a law or executive order because the alien is en-
gaged in an occupation that entitles the alien to the status of a non-
immigrant classified under section 2301, 2302, or 2306 of this title.
§ 9106. Additional requirements for aliens adjusting to cer-
tain employment-based immigrant status
Section 4104(g) (1) and (2)(A) and (B) of this title applies to aliens ap-
plying for an adjustment of status to that of an immigrant under section
4104 (c) or (d) of this title.
§ 9107. Rescission of adjustment of status to alien lawfully
admitted for permanent residence
(a) RESCISSION OF ADJUSTMENT OF STATUS.—If, within 5 years after
the Attorney General adjusts the status of an alien under any provision of
law to that of an alien lawfully admitted for permanent residence, the Attor-
ney General is satisfied that the alien was not eligible for the adjustment,
the Attorney General shall rescind—
(1) the adjustment of the alien’s status; and
(2) the cancellation of the alien’s removal if the Attorney General
canceled the removal.
(b) EFFECT OF RESCISSION.—When the Attorney General rescinds an
adjustment under subsection (a) of this section, the alien becomes subject
to this title as if the Attorney General had not changed the alien’s status.
(c) NO REQUIREMENT TO RESCIND.—This section does not require the
Attorney General to rescind the alien’s status before procedures to remove
the alien under section 6704 of this title are begun.
(d) SUFFICIENCY OF ORDER.—An order of removal issued by an immi-
gration judge is sufficient to rescind the alien’s status.
§ 9108. Change of status
(a) PREREQUISITES.—Except as provided in subsection (b) of this sec-
tion, the Attorney General may change the status of an alien by changing
the alien’s nonimmigrant classification to another nonimmigrant classifica-
tion under conditions prescribed by the Attorney General if the alien—
(1) is lawfully admitted to the United States as a nonimmigrant;
286
(2) continues to maintain that status; and
(3) is not inadmissible under section 6319(b)(1) of this title (or the
alien’s inadmissibility under section 6319(b)(1) is waived under section
6319(b)(6)).
(b) NONAPPLICATION.—The Attorney General may not make a change
under subsection (a) of this section if the alien—
(1) is admitted to the United States for passage through the United
States in immediate and continuous transit to a foreign country;
(2) is classified as a nonimmigrant under section 2304, 2305, 2309,
or 2326 of this title;
(3) is classified as a nonimmigrant under section 2312 of this title
and came to the United States or acquired the classification to receive
graduate medical education or training;
(4) except an alien referred to in clause (3) of this subsection, is
classified as a nonimmigrant under section 2312 of this title and is
subject to, and has not received a waiver of, the 2-year foreign resi-
dence requirement of section 8304(a) of this title, unless the alien ap-
plies to have the alien’s classification changed from a classification as
a nonimmigrant under section 2312 to a classification as a non-
immigrant under section 2301 or 2302 of this title; or
(5) is admitted as a nonimmigrant visitor without a visa under sec-
tion 2121(d) or 2128 of this title.
CHAPTER 93—ADJUSTMENT OF STATUS FOR CERTAIN
ALIENS WHO ENTERED THE UNITED STATES BEFORE
1982
Sec.
9301.
Numerical limitations and admissions.
9302.
Adjustment of status to alien lawfully admitted for temporary residence.
9303.
Applications for adjustment of status to alien lawfully admitted for temporary resi-
dence.
9304.
Adjustment of status from temporary residence to permanent residence.
9305.
Medical examination.
9306.
Nonapplication and waiver of certain provisions of law.
9307.
Fees.
9308.
Confidentiality of information.
9309.
Temporary stay of deportation.
9310.
Temporary ineligibility to receive certain assistance.
9311.
Unfavorable ending of temporary residence status.
9312.
Administrative and judicial review.
9313.
Administrative.
§ 9301. Numerical limitations and admissions
(a) NUMERICAL LIMITATIONS.—The numerical limitations of sections
4102 and 4110 of this title do not apply to an adjustment of status of an
alien to that of an alien lawfully admitted for permanent residence under
this chapter.
287
(b) ADMISSIONS.—This chapter does not authorize an alien to apply for
admission to, or be admitted to, the United States so that the alien may
apply for an adjustment of status under section 9302 of this title.
§ 9302. Adjustment of status to alien lawfully admitted for
temporary residence
(a) REQUIREMENTS.—The Attorney General shall adjust the status of an
alien to that of an alien lawfully admitted for temporary residence if the
alien meets the following requirements:
(1) The alien applied for the adjustment as provided in section 9303
of this title after May 4, 1987, and before May 5, 1988.
(2) The alien entered the United States before January 1, 1982.
(3) The alien resided continuously in the United States in an unlaw-
ful status from January 1, 1982, through the date the application for
the adjustment was filed under this section.
(4) If the alien—
(A) entered the United States as a nonimmigrant before Janu-
ary 1, 1982, the alien’s period of authorized stay as a non-
immigrant expired before January 1, 1982, or the Federal Govern-
ment by January 1, 1982, knew of the unlawful status of the
alien; or
(B) was a nonimmigrant exchange alien classified under section
2312 of this title, the alien was not subject to the 2–year foreign
residence requirement of section 8304(a) of this title, fulfilled the
requirement, or received a waiver.
(5) The alien has been physically present continuously in the United
States, except for any brief, casual, and innocent absence, since No-
vember 6, 1986.
(6) The alien is admissible to the United States as an immigrant,
except as provided in sections 9305 and 9306 of this title.
(7) The alien has not been convicted of a felony or of more than 2
misdemeanors committed in the United States.
(8) The alien has not assisted in the persecution of a person on ac-
count of race, religion, nationality, membership in a particular social
group, or political opinion.
(9) The alien is registered or registering under the Military Selective
Service Act (50 App. U.S.C. 451 et seq.) if the Act requires the alien
to register.
(b) AUTHORIZED TRAVEL.—During the time an alien is an alien lawfully
admitted for temporary residence under subsection (a) of this section, the
Attorney General shall allow the alien to return to the United States after—
288
(1) any brief and casual trip outside the United States that reflects
the alien’s intent to have the alien’s status adjusted under section 9304
of this title to that of an alien lawfully admitted for permanent resi-
dence; and
(2) any brief temporary trip outside the United States because of a
family obligation involving the illness or death of a close relative or an-
other family need.
(c) AUTHORIZED EMPLOYMENT.—During the time an alien is an alien
lawfully admitted for temporary residence under subsection (a) of this sec-
tion, the Attorney General shall grant the alien authorization to be em-
ployed in the United States and provide to the alien an ‘‘employment au-
thorized’’ endorsement or other appropriate work permit.
(d) CUBAN OR HAITIAN ENTRANT.—In applying this section, a Cuban or
Haitian entrant described in section 13151(1) or (2)(A) of this title is
deemed to have entered the United States and to be in an unlawful status
in the United States.
§ 9303. Applications for adjustment of status to alien law-
fully admitted for temporary residence
(a) CONTENTS.—An application for an adjustment of status under section
9302(a) of this title shall contain information the Attorney General re-
quires, including information on each living relative of the applicant with
respect to whom the applicant may file a petition at a later date under sec-
tion 4301 (a) or (b) of this title.
(b) WHO MAY RECEIVE APPLICATIONS.—The Attorney General shall pro-
vide that an application for an adjustment of status under section 9302(a)
of this title may be filed with the Attorney General or with an entity des-
ignated under subsection (c) of this section if the applicant consents to hav-
ing the application forwarded to the Attorney General.
(c) DESIGNATING ENTITIES TO RECEIVE APPLICATIONS.—To assist in
the legalization program under this chapter, the Attorney General—
(1) shall designate qualified voluntary organizations and other quali-
fied state, local, and community organizations; and
(2) may designate other persons the Attorney General decides are
qualified and have substantial experience, demonstrated competence,
and traditional long-term involvement in preparing and submitting ap-
plications for adjustment of status under section 5107, 9101, or 9102
of this title, the Act of November 2, 1966 (Public Law 89–732, 80
Stat. 1161), or the Act of October 28, 1977 (Public Law 95–145, 91
Stat. 1223).
(d) TREATMENT OF APPLICATIONS BY DESIGNATED ENTITIES.—An en-
tity designated under subsection (c) of this section must agree to forward
289
to the Attorney General only those applications filed with it under sub-
section (b) of this section that the applicants consent to being forwarded.
An entity may not make a decision under this chapter required to be made
by the Attorney General.
§ 9304. Adjustment of status from temporary residence to
permanent residence
(a) REQUIREMENTS.—The Attorney General shall adjust the status of an
alien lawfully admitted for temporary residence under section 9302 of this
title to that of an alien lawfully admitted for permanent residence if the
alien—
(1) applies for the adjustment during the 2-year period beginning
with the 19th month that begins after the alien acquired the status of
an alien lawfully admitted for temporary residence;
(2) has resided continuously in the United States since the alien ac-
quired the status of an alien lawfully admitted for temporary residence;
(3) is admissible as an immigrant, except as provided in sections
9305 and 9306 of this title;
(4) has not been convicted of a felony or of more than 2 misdemean-
ors committed in the United States; and
(5)(A) meets the requirements of section 20301(a)(7) and (8) of this
title; or
(B) is pursuing satisfactorily a course of study, recognized by the At-
torney General, to meet the requirements of section 20301(a)(7) and
(8) of this title.
(b) EXCEPTIONS.—(1) An alien does not violate the continuous residence
requirement of subsection (a)(2) of this section because of an absence from
the United States allowed under section 9302(b) of this title.
(2) The Attorney General may waive any part of the requirements of sub-
section (a)(5) of this section for an alien who is at least 65 years of age
or developmentally disabled.
(c) RELATION
TO NATURALIZATION EXAMINATION.—An alien dem-
onstrating under subsection (a)(5)(A) of this section that the alien meets
the requirements of section 20301(a)(7) and (8) of this title may be deemed
to have satisfied those requirements for becoming naturalized as a citizen
of the United States under subtitle V of this title.
§ 9305. Medical examination
An alien must undergo, at the alien’s expense, an appropriate medical ex-
amination (including establishing the alien’s immunization status) that com-
plies with generally accepted professional standards of medical practice be-
fore a decision on the alien’s admissibility under sections 9302(a)(6),
9304(a)(3), and 9311(2) of this title may be made.
290
§ 9306. Nonapplication and waiver of certain provisions of
law
(a) GROUNDS OF EXCLUSION THAT DO NOT APPLY OR THAT MAY BE
WAIVED.—When the Attorney General is deciding on an alien’s admissibility
under sections 9302(a)(6), 9304(a)(3), and 9311(2) of this title—
(1) sections 4311(a), 6301(a)(2) and (b)–(d), and 9106 of this title
do not apply; and
(2) except as provided in subsection (b) of this section, the Attorney
General may waive section 2121(a) and subchapter I of chapter 63 of
this title for an individual alien—
(A) for humanitarian purposes;
(B) to ensure family unity; or
(C) when otherwise in the public interest.
(b) GROUNDS THAT MAY NOT BE WAIVED.—Notwithstanding subsection
(a)(2) of this section, the Attorney General may not waive—
(1) section 6306(a)–(c) of this title to the extent it relates to an ap-
plication for adjustment of status to an alien lawfully admitted for per-
manent residence, except that section 6306(a)–(c) may be waived for
an alien who is or was an aged, blind, or disabled individual (as defined
in section 1614(a)(1) of the Social Security Act (42 U.S.C.
1382c(a)(1)));
(2) section 6309(a)(1)–(4) of this title, except as section 6307(a)(3)
relates to a single offense of simple possession of not more than 30
grams of marijuana; or
(3) section 6310 or 6311 of this title.
(c) SPECIAL RULE
FOR DECIDING WHETHER ALIENS ARE PUBLIC
CHARGES.—An alien is not ineligible for an adjustment of status under this
chapter because of inadmissibility under section 6304(a) of this title if the
alien demonstrates a history of employment in the United States showing
self-support without receiving public cash assistance.
§ 9307. Fees
(a) FEE SCHEDULE.—The Attorney General shall establish a schedule of
fees for applying for an adjustment of status under section 9302 or 9304
of this title. The Attorney General shall provide for an additional fee for
applying for an adjustment of status under section 9304 of this title after
the end of the first year of the 2-year period described in section 9304(a)(1)
of this title.
(b) USE OF FEES.—The Attorney General shall deposit amounts received
under subsection (a) of this section in a separate account. The amounts may
be used, without fiscal year limitation, for expenses related to reviewing ap-
plications filed under section 9302 or 9304 of this title. Capital assets ac-
291
quired with amounts in the account are available for the general use of the
Immigration and Naturalization Service when the assets are not needed for
activities related to reviewing those applications.
§ 9308. Confidentiality of information
(a) LIMITATION ON ACCESS.—A record of an entity designated under sec-
tion 9303(c) of this title, related to an alien seeking assistance or informa-
tion about filing an application under this chapter, is confidential. The At-
torney General and the Commissioner of Immigration and Naturalization
may have access to the record only with the consent of the alien.
(b) LIMITATIONS ON USE.—(1) The Attorney General—
(A) may use information provided in making an application under
this chapter only—
(i) to make a decision on the application; or
(ii) to enforce section 10154 of this title;
(B) may disclose information provided under this chapter in the
same way that census information may be disclosed under section 8 of
title 13;
(C) may not make a publication that allows the information provided
by a particular individual to be identified; and
(D) may allow only a sworn officer or employee of the Department
of Justice or of an entity designated under section 9303(c) of this title
(for an application filed with the entity) to examine an application.
(2) The Attorney General shall provide the information provided in mak-
ing an application under this chapter, and any other information derived
from information provided in making the application, to a recognized law
enforcement entity in connection with a criminal investigation or prosecu-
tion, when the entity makes a written request for the information, or to an
official coroner for affirmatively identifying a deceased individual (whether
or not the individual is deceased as a result of a crime).
(3) Information about whether the applicant has at any time been con-
victed of a crime may be used or released for immigration enforcement or
law enforcement purposes.
(4) This subsection does not limit the use, or release, for immigration en-
forcement or law enforcement purposes, of information contained in files or
records of the Immigration and Naturalization Service related to an applica-
tion filed under section 9302 or 9304 of this title, except information pro-
vided in making the application, or any other information derived from the
application, that is not available from any other source.
§ 9309. Temporary stay of deportation
(a) APPLICATION COULD NOT BE MADE.—If an alien was apprehended
before May 5, 1987, and could have established a prima facie case of eligi-
292
bility for an adjustment of status under section 9302 of this title, except
that the alien could not apply for the adjustment before May 5, 1987, the
Attorney General shall provide that, unless the alien had an opportunity
after May 4, 1987, and before June 4, 1987, to complete the filing of an
application for an adjustment of status, the alien—
(1) may not be deported;
(2) may be employed in the United States; and
(3) shall be provided an ‘‘employment authorized’’ endorsement or
other appropriate work permit.
(b) APPLICATION PRESENTED.—If an alien presented a prima facie appli-
cation for adjustment of status under section 9302 of this title after May
4, 1987, and before May 5, 1988, the Attorney General shall provide that,
until a final decision has been made on the application, the alien—
(1) may not be deported;
(2) may be employed in the United States; and
(3) shall be provided an ‘‘employment authorized’’ endorsement or
other appropriate work permit.
§ 9310. Temporary ineligibility to receive certain assistance
(a) PERIOD OF INELIGIBILITY.—(1) Except as provided in paragraphs
(3) and (4) of this subsection and subsection (b) of this section, an alien
who acquires the status of an alien lawfully admitted for temporary resi-
dence under section 9302 of this title is not eligible for the following, during
the 5-year period beginning on the date the alien was granted the status:
(A) Financial assistance under the state program of assistance under
part A of title IV of the Social Security Act (42 U.S.C. 601 et seq.).
(B) Any other program of financial assistance—
(i) provided under a law of the United States on a financial-
need basis; and
(ii) identified by the Attorney General in consultation with the
heads of appropriate federal departments, agencies, and instru-
mentalities.
(C) Medical assistance under a state plan approved under title XIX
of the Social Security Act (42 U.S.C. 1396 et seq.).
(D) Assistance under the Food Stamp Act of 1977 (7 U.S.C. 2011
et seq.).
(2) To the extent consistent with this subsection and subsection (b) of
this section, a State or political subdivision of a State may provide that the
alien is not eligible for financial assistance referred to in paragraph (1)(A)
and (B) of this subsection or for medical assistance referred to in paragraph
(1)(C) of this subsection provided under a law of the State or political sub-
division.
293
(3) Paragraph (1) of this subsection does not apply to—
(A) a Cuban or Haitian entrant (as defined in section 501(e)(1) or
(2)(A) of the Refugee Education Assistance Act of 1980 (Public Law
96–422, 94 Stat. 1810) as in effect on April 1, 1983); or
(B) assistance (except assistance under a state program financed
under part A of title IV of the Social Security Act (42 U.S.C. 601 et
seq.)) provided an alien who is an aged, blind, or disabled individual
(as defined in section 1614(a)(1) of the Social Security Act (42 U.S.C.
1382c(a)(1)).
(4) Assistance provided under the following laws is not financial assist-
ance referred to in paragraph (1)(B) of this subsection:
(A) Title IV of the Higher Education Act of 1965 (20 U.S.C. 1070
et seq. and 42 U.S.C. 2751 et seq.).
(B) The Carl D. Perkins Vocational and Applied Technology Edu-
cation Act (20 U.S.C. 2301 et seq.).
(C) Title I of the Elementary and Secondary Education Act of 1965
(20 U.S.C. 6301 et seq.).
(D) The Job Training Partnership Act (29 U.S.C. 1501 et seq.).
(E) The Public Health Service Act (42 U.S.C. 201 et seq.).
(F) Titles I, X, XIV, and XVI of the Social Security Act (42 U.S.C.
301 et seq., 1201 et seq., 1351 et seq., 1381 et seq.) as in effect with-
out regard to the amendment made by section 301 of the Social Secu-
rity Amendments of 1972 (Public Law 92–603, 86 Stat. 1465).
(G) Parts B, D, and E of title IV and titles V, XVI, and XX of
the Social Security Act (42 U.S.C. 620 et seq., 651 et seq., 670 et seq.,
701 et seq., 1381 et seq., 1397 et seq.).
(H) The National School Lunch Act (42 U.S.C. 1751 et seq.).
(I) The Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.).
(J) The Head Start Act (42 U.S.C. 9831 et seq.).
(b) RESTRICTED MEDICAL ASSISTANCE.—(1) In this subsection—
(A) ‘‘medical assistance’’ means medical assistance under a state
plan approved under title XIX of the Social Security Act (42 U.S.C.
1396 et seq.); and
(B) an alien lawfully admitted for temporary residence under section
9302 of this title is deemed to be residing permanently in the United
States under color of law as long as the alien’s temporary residence
status is not adjusted.
(2) Except as provided in paragraph (3) of this subsection and notwith-
standing title XIX of the Social Security Act (42 U.S.C. 1396 et seq.), an
alien lawfully admitted for temporary residence under section 9302 of this
title is eligible for only the following medical assistance during the 5-year
294
period beginning on the date the alien is granted temporary residence sta-
tus:
(A) Emergency services as provided under section 1916(a)(2)(D) of
the Social Security Act (42 U.S.C. 1396o(a)(2)(D)).
(B) Services for pregnant women as described in section
1916(a)(2)(B) of the Social Security Act (42 U.S.C. 1396o(a)(2)(B)).
(3) An alien lawfully admitted for temporary residence under section
9302 of this title is eligible for any medical assistance during the 5-year
period beginning on the date the alien is granted temporary residence status
if the alien is—
(A) an alien described in subsection (a)(3) of this section; or
(B) less than 18 years of age.
(c) ADJUSTMENT OF STATUS NOT AFFECTING CERTAIN BENEFITS.—As-
sistance under subchapter III of chapter 131 of this title shall be continued
without regard to an adjustment of the alien’s status under this chapter.
(d) ALIEN NOT RESIDING PERMANENTLY IN THE UNITED STATES.—Un-
less otherwise specifically provided, an alien lawfully admitted for temporary
residence under section 9302 of this title is not residing permanently in the
United States under color of law for purposes of a law of a State or political
subdivision of a State providing for a program of financial assistance.
§ 9311. Unfavorable ending of temporary residence status
The Attorney General shall end the temporary residence status granted
an alien under section 9302 of this title—
(1) if the Attorney General believes the alien was not eligible for that
status;
(2) if the alien—
(A) commits an act that makes the alien inadmissible to the
United States as an immigrant, except as provided in sections
9305 and 9306 of this title; or
(B) is convicted of a felony or of at least 3 misdemeanors com-
mitted in the United States; or
(3) at the end of the 43d month beginning after the date the alien
is granted the status, unless the alien has applied under section 9304
of this title for an adjustment of status to that of an alien lawfully ad-
mitted for permanent residence and the application has not been de-
nied.
§ 9312. Administrative and judicial review
(a) EXCLUSIVENESS OF REVIEW.—The only administrative and judicial
reviews of a decision made under this chapter about an application for an
adjustment of status of an alien shall be the reviews provided in this sec-
tion.
295
(b) ADMINISTRATIVE REVIEW.—Except as provided in subsection (d) of
this section, the Attorney General shall maintain an appellate authority to
provide for a single level of administrative appellate review of a decision de-
scribed in subsection (a) of this section. The review shall be based only on
the administrative record established at the time of the decision and on ad-
ditional or newly discovered evidence not available at the time the decision
was made.
(c) JUDICIAL REVIEW.—(1) Except as provided in subsection (d) of this
section, a decision made under this chapter denying an adjustment of status
of an alien may be reviewed judicially only by judicial review of an order
of deportation under section 106 of the Immigration and Nationality Act
as in effect on September 30, 1996. The review shall be based only on the
administrative record established at the time of the review by the appellate
authority. The findings of fact and decisions contained in the record of the
authority are conclusive unless the applicant establishes abuse of discretion
or that the findings are directly contrary to clear and convincing facts con-
tained in the record considered as a whole.
(2) As of November 6, 1986, a court does not have jurisdiction of a cause
of action or claim by or on behalf of an individual asserting an interest
under this chapter unless the individual—
(A) filed an application under this chapter within the period specified
in section 9302(a)(1) of this title; or
(B) attempted to file a complete application and application fee with
an authorized legalization officer of the Immigration and Naturaliza-
tion Service but the officer refused the application and fee.
(d) NO REVIEW FOR LATE FILING.—A denial of an adjustment of status
under this chapter because an application for the adjustment was filed late
may not be reviewed in an administrative proceeding of the Federal Govern-
ment or by a court of the United States or a State.
§ 9313. Administrative
(a) REGULATIONS.—After consulting with the Committees on the Judici-
ary of the House of Representatives and the Senate, the Attorney General
shall prescribe—
(1) regulations establishing a definition of ‘‘resided continuously’’ for
this chapter and evidence needed to establish that an alien has resided
continuously in the United States under this chapter; and
(2) other regulations necessary to carry out this chapter.
(b) CONSIDERATIONS.—In prescribing regulations under subsection (a)(1)
of this section, the Attorney General—
(1) shall specify individual and total periods of absence from the
United States that will break a period of continuous residence in the
296
United States and shall consider any absence that is only a brief and
casual trip outside the United States;
(2) shall provide that—
(A) an alien has not resided continuously in the United States
if the alien was outside the United States, during a period for
which continuous residence is required, because of a deportation
order; and
(B) time during which an alien is outside the United States
under the advance parole procedures of the Commissioner of Im-
migration and Naturalization is not part of the time during which
an alien is outside the United States under this chapter;
(3) may provide for a waiver of the periods specified in clause (1)
of this subsection if the absence is a brief temporary trip outside the
United States required by an emergency or extenuating circumstance
outside the control of the alien; and
(4) shall require that continuous residence and physical presence in
the United States be established by documents (employment-related if
available to the alien) and independent corroboration of the information
the documents contain.
PART G—PENALTIES
CHAPTER 101—PENALTIES
SUBCHAPTER I—GENERAL
Sec.
10101.
Jurisdiction.
10102.
Settlement, compromise, and discontinuance of certain proceedings.
SUBCHAPTER II—CIVIL PENALTIES
10111.
Violating regulations related to ports of entry for aliens arriving by aircraft.
10112.
Failure to deliver lists of passengers.
10113.
Failure to provide lists and reports about alien crewmembers.
10114.
Failure to control alien crewmembers.
10115.
Improper discharge of alien crewmembers.
10116.
Employing alien crewmembers having disabilities and diseases.
10117.
Employing alien crewmembers for certain longshore work.
10118.
Violations involving certifications for longshore work by alien crewmembers.
10119.
Bringing in aliens excludable because of health.
10120.
Bringing in aliens not having passports and visas.
10121.
Assisting unlawful entry as alien crewmembers.
10122.
Failure to prevent unauthorized landings.
10123.
Failure to remove alien stowaways.
10124.
Failure to carry out certain orders related to removal.
10125.
Document fraud.
10126.
Illegal entry.
10127.
Failure to depart.
10128.
Improper use, publication, examination, or disclosure of information.
10129.
Information dissemination by international matchmaking organization.
10130.
Clearing vessels and aircraft.
SUBCHAPTER III—CRIMINAL PENALTIES
10141.
Violating period of conditional landing permit.
10142.
Failure to register and be fingerprinted.
10143.
Failure to carry a certificate of alien registration or alien registration receipt card.
10144.
Failure to provide addresses.
297
10145.
False and fraudulent registration.
10146.
Counterfeiting alien registration documents.
10147.
Bringing in and harboring aliens.
10148.
Improper entry of aliens.
10149.
Reentry of removed aliens.
10150.
Assisting certain excludable aliens to enter the United States.
10151.
Importing aliens for immoral purposes.
10152.
Failure to depart.
10153.
Marriage to evade immigration laws.
10154.
Misrepresentations in applications for adjustment of status.
10155.
Establishing a commercial enterprise to evade immigration laws.
10156.
Failure to disclose role as preparer of false application for immigration benefits.
10157.
Failure to comply with terms of release under supervision.
SUBCHAPTER I—GENERAL
§ 10101. Jurisdiction
(a) DISTRICT COURTS.—The district courts of the United States have ju-
risdiction over all civil and criminal actions the Federal Government brings
after September 30, 1996, that arise under this title (except subchapter I
of chapter 7, chapter 47, subchapters II and III of chapter 131, chapters
133 and 135, section 13702, and chapter 151).
(b) JURISDICTION NOT PROVIDED.—This title (except subchapter I of
chapter 7, chapter 47, subchapters II and III of chapter 131, chapters 133
and 135, section 13702, and chapter 151) does not provide jurisdiction for
an action against the Government or a department, agency, instrumentality,
or officer of the Government filed after September 30, 1996.
§ 10102. Settlement, compromise, and discontinuance of cer-
tain proceedings
A judicial proceeding for violating this title (except subchapter I of chap-
ter 7, chapter 47, subchapters II and III of chapter 131, chapters 133 and
135, section 13702, and chapter 151) may be settled, compromised, or dis-
continued only with the consent of the court. A settlement, compromise, or
discontinuance, and the reasons for it, shall be entered on the record.
SUBCHAPTER II—CIVIL PENALTIES
§ 10111. Violating regulations related to ports of entry for
aliens arriving by aircraft
(a) CIVIL PENALTY AND COMPROMISE.—A person violating a regulation
prescribed under section 7301 of this title is liable to the Federal Govern-
ment for a civil penalty of $2,000. The Attorney General may compromise
the amount of the penalty. A decision on a penalty or compromise under
this section is final.
(b) LIEN ON AIRCRAFT.—When the owner or individual in command of
an aircraft violates a regulation referred to in subsection (a) of this section,
the aircraft is subject to a lien for the civil penalty. The aircraft may be
seized summarily by, and placed in the custody of, a person authorized
under regulations prescribed by the Attorney General.
298
(c) RELEASE OF AIRCRAFT.—An aircraft seized under this section may
be released from custody—
(1) on deposit of—
(A) an amount (but not more than $2,000) prescribed by the
Attorney General; or
(B) a bond in an amount and with an insurer prescribed by the
Attorney General; and
(2) conditioned on payment of the penalty decided on by the Attor-
ney General.
(d) COLLECTION OF PENALTY.—A civil action in rem may be brought
against the aircraft to collect the civil penalty. The action shall conform as
nearly as practicable to civil actions in admiralty.
§ 10112. Failure to deliver lists of passengers
(a) CIVIL PENALTY.—If the Attorney General is satisfied that a person
has not delivered an accurate list of passengers as required under section
7302 of this title, the person is liable to the Federal Government for a civil
penalty of $300 for each passenger for whom the list is not sworn and deliv-
ered as required.
(b) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10113. Failure to provide lists and reports about alien
crewmembers
(a) CIVIL PENALTY.—A person not delivering a list or report required by
section 2701 or 2702 of this title is liable to the Federal Government for
a civil penalty of $200 for each alien crewmember not listed or reported as
required.
(b) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10114. Failure to control alien crewmembers
(a) CIVIL PENALTY.—A person not detaining or removing an alien crew-
member as required by section 2704 of this title is liable to the Federal
Government for a civil penalty of $3,000 for each alien crewmember not de-
tained or removed.
(b) COMPROMISE.—The Attorney General may compromise the amount of
a civil penalty under this section to not less than $500 for each alien crew-
member involved.
§ 10115. Improper discharge of alien crewmembers
(a) CIVIL PENALTY.—If the Attorney General is satisfied that a person
has violated section 2706 of this title, the person is liable to the Federal
Government for a civil penalty of $3,000 for each violation.
299
(b) COMPROMISE.—The Attorney General may compromise the amount of
a civil penalty under this section to not less than $1,500 for each violation.
§ 10116. Employing alien crewmembers having disabilities
and diseases
(a) CIVIL PENALTY.—The owner, agent, master, commanding officer, or
consignee of a vessel or aircraft is liable to the Federal Government for a
civil penalty of $1,000 for each alien crewmember employed in violation of
section 2705(a) of this title if the Attorney General is satisfied, from an
examination certified by a medical officer of the Public Health Service,
that—
(1) the crewmember was afflicted with a disability or disease referred
to in section 2705(a) of this title when the crewmember was taken on
board the vessel or aircraft; and
(2) the disability or disease could have been detected by a competent
medical examination.
(b) COMPROMISE.—The Attorney General may compromise the amount of
a civil penalty under this section.
§ 10117. Employing alien crewmembers for certain longshore
work
(a) CIVIL PENALTY.—An owner, agent, master, commanding officer, or
consignee of a vessel that hires an alien crewmember classified as a non-
immigrant under section 2305(a)(1) of this title to perform longshore work
not included in the normal operation and service on a vessel under section
2723, 2724, or 2725 of this title is liable to the Federal Government for
a civil penalty of $5,000.
(b) LIEN ON VESSEL.—A vessel referred to in subsection (a) of this sec-
tion is subject to a lien for the amount of the civil penalty.
(c) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10118. Violations involving certifications for longshore
work by alien crewmembers
If the Secretary of Labor finds under section 2723(f) of this title that
an employer has failed to meet a condition, or misrepresented a material
fact, in its attestation under section 2723(a) of this title, the Secretary may
impose a civil penalty of not more than $5,000 for each alien crewmember
the employer employs to perform unauthorized longshore work.
§ 10119. Bringing in aliens excludable because of health
(a) CIVIL PENALTY.—A person is liable to the Federal Government for
a civil penalty of $3,000 for each alien the person brings to the United
States in violation of section 7307(b) of this title.
300
(b) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10120. Bringing in aliens not having passports and visas
(a) CIVIL PENALTY.—If the Attorney General is satisfied that a person
has brought an alien to the United States in violation of section 7307(a)
of this title, the person is liable to the Federal Government for a civil pen-
alty of—
(1) $3,000 for each such alien; plus
(2) except for an alien admitted or allowed to land temporarily, an
amount equal to the amount the alien paid to be transported from the
initial port of departure, as shown on the alien’s ticket, to the port of
arrival.
(b) RETURN OF AMOUNT TO ALIEN.—The amount paid under subsection
(a)(2) of this section shall be paid to the alien brought in violation of sec-
tion 7307(a) of this title.
(c) COMPROMISE AND WAIVER.—(1) The Attorney General may com-
promise the amount of a civil penalty under this section only if the Attorney
General is satisfied that the person, before the vessel or aircraft carrying
the alien left the last port outside the United States, did not know and
could not have learned by reasonable diligence that the individual trans-
ported was an alien required to have a passport and visa.
(2) Under regulations the Attorney General prescribes, the Attorney Gen-
eral may compromise or waive a civil penalty under this section if—
(A) the carrier demonstrates that it screened all passengers on the
vessel or aircraft under procedures the Attorney General prescribed; or
(B) the Attorney General decides that circumstances exist that jus-
tify the compromise or waiver.
(d) NONAPPLICATION.—This section does not apply to a carrier or an
owner, agent, master, commanding officer, charterer, or consignee of a ves-
sel or aircraft relying on a visa or other documentation that has been re-
voked unless reasonable notice of the revocation is received before the alien
leaves.
§ 10121. Assisting unlawful entry as alien crewmembers
(a) CIVIL PENALTY.—A person, including the owner, agent, master, com-
manding officer, or consignee of a vessel or aircraft arriving in the United
States, is liable to the Federal Government for a civil penalty of not more
than $10,000 for each alien whom the person—
(1) knowingly signs on the articles of the vessel, or brings to the
United States as a crewmember of the vessel or aircraft, with intent
to allow or assist the alien to enter or land in the United States unlaw-
fully; or
301
(2) knowingly and falsely represents to a consular officer when the
alien applies for a visa, or to an immigration officer at the port of ar-
rival in the United States, that the alien is a crewmember.
(b) LIEN ON VESSEL OR AIRCRAFT.—A vessel or aircraft referred to in
subsection (a) of this section is subject to a lien for the civil penalty and
may be seized. A civil action in rem may be brought against the vessel or
aircraft to collect the penalty.
§ 10122. Failure to prevent unauthorized landings
(a) CIVIL PENALTY.—A person violating section 7305(a) of this title is
liable to the Federal Government for a civil penalty of $3,000 for each viola-
tion, to be imposed by the Attorney General.
(b) LIEN ON VESSEL OR AIRCRAFT.—The vessel or aircraft used in
transporting an alien landed in violation of this section is subject to a lien
for the civil penalty. A civil action in rem may be brought against the vessel
or aircraft to collect the penalty.
(c) COMPROMISE.—The Attorney General may compromise the amount of
a civil penalty under this section.
§ 10123. Failure to remove alien stowaways
(a) CIVIL PENALTY.—If the Attorney General is satisfied that a person
has failed to remove an alien stowaway as required by section 6718(b) of
this title, the person is liable to the Federal Government for a civil penalty
of $5,000 for each alien stowaway not removed.
(b) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10124. Failure to carry out certain orders related to re-
moval
(a) CIVIL PENALTY.—If the Attorney General is satisfied that a person
has violated section 6718 or 6719(b) or (c) of this title, the person is liable
to the Federal Government for a civil penalty of $2,000 for each violation.
(b) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10125. Document fraud
(a) DEFINITIONS.—In this section, ‘‘falsely make’’ means to prepare at
any time, or provide after September 29, 1996, an application or document
with knowledge or in reckless disregard of the fact that the application or
document—
(1) contains a false, fictitious, or fraudulent statement or material
representation;
(2) has no basis in law or fact; or
(3) otherwise fails to state a fact which is material to the purpose
for which it was submitted.
302
(b) VIOLATIONS.—(1) A person or entity may not knowingly—
(A) forge, counterfeit, alter, or falsely make a document to satisfy
a requirement of this title or to obtain a benefit under this title;
(B) use, attempt to use, possess, obtain, accept, receive, or provide
a forged, counterfeit, altered, or falsely made document to satisfy a re-
quirement of this title or to obtain a benefit under this title;
(C) use, provide, or attempt to use or provide, a document lawfully
issued to or with respect to a person other than the possessor (includ-
ing a deceased individual), to satisfy a requirement of this title or to
obtain a benefit under this title;
(D) accept, receive, or provide a document lawfully issued to or with
respect to a person other than the possessor (including a deceased indi-
vidual), to comply with section 11103 of this title or to obtain a benefit
under this title;
(E) prepare, file, or assist another in preparing or filing, any appli-
cation for benefits under this title, document required under this title,
or document submitted in connection with the application or document,
with knowledge or in reckless disregard of the fact that the application
or document was falsely made or does not relate to the person on
whose behalf it was or is being submitted; or
(F)(i) present before boarding a common carrier for the purpose of
coming to the United States a document that relates to the alien’s eli-
gibility to enter the United States; and
(ii) fail to present the document to an immigration officer on arrival
at a United States port of entry.
(2) This subsection does not apply to subchapter I of chapter 7, chapter
47, subchapters II and III of chapter 131, chapters 133 and 135, section
13702, and chapter 151 of this title.
(c) AUTHORITY IN CONDUCTING INVESTIGATIONS AND HEARINGS.—(1)
In conducting an investigation or hearing under this section—
(A) an immigration officer or administrative law judge shall have
reasonable access to examine evidence of a person or entity being inves-
tigated;
(B) an administrative law judge may subpena, if necessary, the at-
tendance of witnesses and the production of evidence at any designated
place; and
(C) an immigration officer designated by the Commissioner of Immi-
gration and Naturalization may subpoena the attendance of witnesses
and the production of evidence at any designated place prior to the fil-
ing of a complaint under subsection (d) of this section.
303
(2) If a person or entity disobeys a subpena issued under this subsection,
an appropriate district court of the United States, on application by the At-
torney General, may issue an order to comply with the subpena. The court
may punish a failure to comply with the order of the court as a contempt
of court.
(d) HEARINGS.—(1) The Attorney General may issue an order referred
to in subsection (e) of this section against a person or entity for violating
subsection (b) of this section only after providing notice and an opportunity
for a hearing. A hearing must be requested within a reasonable time (estab-
lished by the Attorney General, but at least 30 days) after the date of the
notice.
(2) If a timely request for a hearing is not made, the Attorney General
may issue an order referred to in subsection (e) of this section without a
hearing.
(3) If a timely request for a hearing is made, the hearing shall be con-
ducted by an administrative law judge as provided in section 554 of title
5 at the nearest practicable place to the place where the person or entity
resides or the alleged violation occurred. If the judge finds by a preponder-
ance of the evidence that the person or entity has violated subsection (b)
of this section, the judge shall—
(A) state findings of fact; and
(B) issue and have served on the person or entity an order referred
to in subsection (e) of this section.
(e) CEASE AND DESIST ORDERS.—(1) For a violation of subsection (b)
of this section, an order issued under this section shall require the person
or entity to cease and desist from the violation and to pay a civil penalty
of—
(A) at least $250, but not more than $2,000, for each document that
is the subject of a violation under subsection (b) of this section; or
(B) at least $2,000, but not more than $5,000, for each document
that is the subject of a violation under subsection (b) of this section,
if the person or entity previously was subject to an order under this
subsection.
(2) Under paragraph (1) of this subsection, if the person or entity is com-
posed of distinct, physically separate subdivisions each of which provides
separately for the hiring, recruiting, or referring for employment, without
reference to the practices of, and not under control of or common control
with, another subdivision, each subdivision is deemed a separate person or
entity.
304
(f) FINALITY OF DECISIONS AND ORDERS.—(1) The decision and order
of an administrative law judge become the final agency decision and order
of the Attorney General unless—
(A)(i) within 30 days after the date of the decision and order, an
official delegated by regulation to exercise review authority over the de-
cision and order modifies or vacates the decision and order; and
(ii) within 30 days after the date of being modified or vacated, the
decision and order are referred to the Attorney General pursuant to
regulations; or
(B) within 60 days after the date of decision and order (if not modi-
fied or vacated), the decision and order are referred to the Attorney
General pursuant to regulations.
(2) If the decision and order are referred to the Attorney General under
paragraph (1) of this subsection, the decision and order of the Attorney
General become the final decision and order.
(g) JUDICIAL REVIEW.—(1) Except as provided in paragraph (2) of this
subsection, a person or entity adversely affected by a final order under this
section may file a petition for review of the order in the court of appeals
for the appropriate circuit within 45 days after the date the final order is
issued.
(2) An order of the Attorney General issued without a hearing as pro-
vided in subsection (d)(2) of this section is not appealable.
(h) ENFORCEMENT OF ORDER.—If a person or entity does not comply
with a final order issued under this section, the Attorney General shall bring
a civil action in an appropriate district court of the United States to seek
compliance with the order. The validity and appropriateness of the order
may not be reviewed in the action.
(i) WAIVER OF PENALTY.—The Attorney General may waive the penalties
imposed under this section with respect to an alien who knowingly violates
subsection (b)(1)(F) of this section if the alien is granted asylum under sec-
tion 5106 of this title or withholding of removal under section 6716(d) of
this title.
(j) INVESTIGATIVE, PROTECTIVE, AND INTELLIGENCE ACTIVITIES NOT
PROHIBITED.—This section does not prohibit—
(1) any lawfully authorized investigative, protective, or intelligence
activity of a law enforcement agency of the United States, a State, or
a subdivision of a State or of an intelligence agency of the United
States; or
(2) any activity authorized under chapter 224 of title 18.
(k) CONSTRUCTION.—This section does not affect a penalty that may be
imposed for an activity prohibited under both this section and title 18.
305
§ 10126. Illegal entry
(a) GENERAL.—An alien apprehended while entering or attempting to
enter the United States after March 31, 1997, at a time or place not des-
ignated by an immigration officer is liable to the Federal Government for
a civil penalty of—
(1) at least $50 and not more than $250 for each entry or attempt;
or
(2) twice the amount specified in clause (1) of this subsection if the
alien previously was liable to the Government for a civil penalty under
this section.
(b) OTHER PENALTIES NOT AFFECTED.—A civil penalty under this sec-
tion is in addition to any criminal or other civil penalty that may be im-
posed.
§ 10127. Failure to depart
(a) VOLUNTARILY.—An alien allowed to depart voluntarily under section
6714(a) or (b) of this title who does not depart the United States volun-
tarily within the time period specified is—
(1) liable to the Federal Government for a civil penalty of at least
$1,000 and not more than $5,000; and
(2) ineligible for 10 years for any further relief under section
6714(a) or (b), 6721, 9101, 9102, 9104, or 9108 of this title.
(b) SUBJECT TO FINAL ORDER OF DEPORTATION.—(1) An alien subject
to a final order of removal is liable to the Government for a civil penalty
of not more than $500 for each day after March 31, 1997, that the alien—
(A) willfully fails or refuses to—
(i) depart from the United States under the order;
(ii) make timely application in good faith for travel or other
documents necessary for departure; or
(iii) present for removal at the time and place required by the
Attorney General; or
(B) conspires to, or takes any action designed to, prevent or hamper
the alien’s departure under the order.
(2) Paragraph (1) of this subsection does not diminish or qualify any
penalties to which an alien may be subject for activities proscribed by this
title.
§ 10128. Improper use, publication, examination, or disclo-
sure of information
An individual who—
(1) knowingly uses information, publishes information, or allows in-
formation to be examined in violation of section 9308(b) of this title
306
is liable to the Federal Government for a civil penalty of not more than
$10,000; and
(2) willfully uses information, publishes information, or allows infor-
mation to be disclosed in violation of section 366 of this title is—
(A) subject to appropriate disciplinary action; and
(B) liable to the Government for a civil penalty of not more
than $5,000 for each violation.
§ 10129. Information dissemination by international match-
making organization
(a) FINDINGS.—Congress finds the following:
(1) There is a substantial mail-order bride business in the United
States. With approximately 200 companies in the United States, an es-
timated 2,000 to 3,500 men in the United States find wives through
mail-order bride catalogs each year. However, there are no official sta-
tistics available on the number of mail-order brides entering the United
States each year.
(2) The companies engaged in the mail-order bride business earn
substantial profits.
(3) Although many of these mail-order marriages work out, in many
other cases, anecdotal evidence suggests that mail-order brides find
themselves in abusive relationships. There is also evidence to suggest
that a substantial number of mail-order marriages are fraudulent
under the laws of the United States.
(4) Many mail-order brides come to the United States unaware or
ignorant of United States immigration law. Mail-order brides who are
battered often think that if they flee an abusive marriage, they will be
deported. Often the citizen spouse threatens to have them deported if
they report the abuse.
(5) The Immigration and Naturalization Service estimates that the
rate of marriage fraud between foreign nationals and United States
citizens or aliens lawfully admitted for permanent residence is 8 per-
cent. It is unclear what percentage of these marriage fraud cases origi-
nate as mail-order marriages.
(b) DEFINITIONS.—In this section—
(1) ‘‘international matchmaking organization’’—
(A) means a legal entity, whether or not organized under the
laws of the United States or any State, that does business in the
United States and for profit offers to United States citizens or
aliens lawfully admitted for permanent residence, dating, matrimo-
nial, or social referral services to nonresident noncitizens, by—
307
(i) an exchange of names, telephone numbers, addresses, or
statistics;
(ii) selection of photographs; or
(iii) a social environment provided by the organization in
a country other than the United States; but
(B) does not include a traditional matchmaking organization of
a religious nature that otherwise complies with the laws of the
countries of the recruits of the organization and the laws of the
United States.
(2) ‘‘recruit’’ means a noncitizen, nonresident person recruited by
the international matchmaking organization to provide dating, mat-
rimonial, or social referral services to United States citizens or aliens
lawfully admitted for permanent residence.
(c) DISSEMINATION OF INFORMATION.—(1) Each international match-
making organization doing business in the United States shall disseminate
to recruits, when recruited, immigration and naturalization information that
the Service considers appropriate, including information on—
(A) conditional permanent residence status and the battered spouse
waiver under that status;
(B) permanent resident status;
(C) marriage fraud penalties;
(D) the unregulated nature of the business engaged in by those orga-
nizations; and
(E) the study required under section 652(c) of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996 (Public Law
104–208, div. C, 110 Stat. 3009–712).
(2) The information shall be disseminated in the recruit’s native lan-
guage.
(d) CIVIL PENALTY.—(1) An international matchmaking organization
that the Attorney General decides has violated subsection (c) of this section
is liable to the Federal Government for a civil penalty of not more than
$20,000 for each violation.
(2) A penalty under paragraph (1) of this subsection—
(A) may be imposed only after notice and an opportunity for an
agency hearing on the record in accordance with sections 554–557 of
title 5; and
(B) is in addition to any other penalties that may be prescribed by
law.
§ 10130. Clearing vessels and aircraft
(a) CLEARANCE BEFORE DECISION ON LIABILITY.—A vessel or aircraft
may be granted clearance before a decision on liability is made under—
308
(1) section 10113–10117, 10119, or 10120 of this title only if a
bond approved by the Attorney General or an amount sufficient to pay
the civil penalty is deposited; and
(2) section 10112, 10123, or 10124 of this title only if a bond ap-
proved by the Attorney General or an amount sufficient to pay the civil
penalty is deposited with the Commissioner of Immigration and Natu-
ralization.
(b) PROHIBITION ON CLEARANCE WHEN PENALTY UNPAID.—A vessel or
aircraft may not be granted clearance if a civil penalty imposed under sec-
tion 10112–10117, 10119, 10120, 10123, or 10124 of this title is not paid.
SUBCHAPTER III—CRIMINAL PENALTIES
§ 10141. Violating period of conditional landing permit
An alien crewmember willfully remaining in the United States after the
period allowed by a conditional permit issued under section 2703(b) of this
title shall be fined under title 18, imprisoned for not more than 6 months,
or both.
§ 10142. Failure to register and be fingerprinted
An alien required to apply for registration and to be fingerprinted in the
United States and willfully failing to apply or to be fingerprinted, and a
parent or legal guardian required to apply for the registration of an alien
and willfully failing to apply, shall be fined under title 18, imprisoned for
not more than 6 months, or both.
§ 10143. Failure to carry a certificate of alien registration or
alien registration receipt card
An alien violating section 8103(b) of this title shall be fined under title
18, imprisoned for not more than 30 days, or both.
§ 10144. Failure to provide addresses
An individual violating section 8104 of this title shall be fined under title
18, imprisoned for not more than 30 days, or both.
§ 10145. False and fraudulent registration
An alien, or a parent or legal guardian of an alien, who files an applica-
tion for registration knowing that the application contains a false statement,
or who registers or attempts to register himself, herself, or another individ-
ual through fraud, shall be fined under title 18, imprisoned for not more
than 6 months, or both.
§ 10146. Counterfeiting alien registration documents
A person that with unlawful intent makes an engraving, photograph,
print, impression, or imitation of a certificate of alien registration or an
alien registration receipt card, except when authorized under regulations
prescribed by the Attorney General, shall be fined under title 18, imprisoned
for not more than 5 years, or both.
309
§ 10147. Bringing in and harboring aliens
(a) CRIMINAL PENALTIES.—(1)(A) A person shall be punished as pro-
vided in subparagraph (B) of this paragraph if the person—
(i) knowing an individual is an alien, brings or attempts to bring the
individual to the United States at a place not designated as a port of
entry or not designated by the Commissioner of Immigration and Natu-
ralization, even if the alien has received prior authorization to come to,
enter, or reside in the United States, and regardless of any future offi-
cial action that may be taken with respect to the alien;
(ii) knowing, or in reckless disregard of whether, an alien has come
to, has entered, or remains in the United States in violation of law,
transports or moves, or attempts to transport or move, the alien within
the United States in furtherance of that violation;
(iii) knowing, or in reckless disregard of whether, an alien has come
to, has entered, or remains in the United States in violation of law,
conceals, harbors, or shields from detection, or attempts to conceal,
harbor, or shield from detection, the alien;
(iv) encourages or induces an alien to come to, enter, or reside in
the United States, knowing, or in reckless disregard of whether, the
coming, entering, or residing is unlawful;
(v) engages in any conspiracy to commit any of the acts described
in clauses (i)–(iv); or
(vi) aids or abets the commission of any of the acts described in
clauses (i)–(iv).
(B) For each alien with respect to whom a violation of subparagraph (A)
of this paragraph occurs, the person committing the violation—
(i) for a violation of subparagraph (A)(i) or (v), or for a violation
of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for
commercial advantage or private financial gain, shall be fined under
title 18, imprisoned for not more than 10 years, or both;
(ii) for a violation of subparagraph (A)(ii), (iii), (iv), or (vi), shall
be fined under title 18, imprisoned for not more than 5 years, or both;
(iii) for a violation of subparagraph (A)(i), (ii), (iii), (iv), (v), or (vi)
during and in relation to which the person causes serious bodily injury
(as defined in section 1365 of title 18) to, or places in jeopardy the
life of, any person, shall be fined under title 18, imprisoned for not
more than 20 years, or both; and
(iv) for a violation of subparagraph (A)(i), (ii), (iii), (iv), (v), or (vi)
resulting in death, shall be imprisoned for any term of years or for life
or punished by death, fined under title 18, or both.
310
(2)(A) A person shall be punished as provided in subparagraph (B) of
this paragraph if the person, knowing or in reckless disregard of whether
an alien has not received prior authorization to come to, enter, or reside
in the United States, brings or attempts to bring the alien to the United
States, regardless of any future official action that may be taken with re-
spect to the alien.
(B) For each alien in respect of whom a violation of subparagraph (A)
of this paragraph occurs, the person committing the violation shall be fined
under title 18, imprisoned for not more than one year, or both, except that
if the violation is—
(i) a first or 2d violation done for commercial advantage or private
financial gain or committed with the intent or with reason to believe
that the alien unlawfully brought into the United States will commit
an offense against the Federal Government or any State punishable by
imprisonment for more than 1 year, the person shall be fined under
title 18 and imprisoned for not less than 3 nor more than 10 years;
(ii) a first or 2d violation in which the alien is not brought and pre-
sented to an immigration officer at a designated port of entry imme-
diately on arrival, the person shall be fined under title 18 and impris-
oned for not more than 10 years; or
(iii) any other violation described in clause (i) or (ii) of this subpara-
graph, fined under title 18 and imprisoned for not less than 5 nor more
than 15 years.
(3) A person shall be fined under title 18, imprisoned for not more than
5 years, or both, if the person, during any 12-month period, knowingly hires
for employment at least 10 individuals with actual knowledge that the indi-
viduals—
(A) are unauthorized aliens (as defined in section 11101 of this
title); and
(B) have been brought into the United States in violation of this
subsection.
(b) SEIZURE
AND FORFEITURE
OF CONVEYANCE.—(1) A conveyance
used in violating subsection (a) of this section shall be seized and may be
forfeited. However, a conveyance—
(A) used by a person as a common carrier in carrying out common
carrier business may be forfeited only if the owner or person in charge
of the conveyance consented to, or was privy to, the violation; and
(B) may not be forfeited if the owner establishes that another person
committed the violation when the conveyance was in the possession of
another person in violation of the criminal laws of the United States
or of a State.
311
(2) A conveyance may be seized under this section without a warrant if
there is probable cause to believe it has been or is being used in violating
subsection (a) of this section and circumstances exist in which a warrant
is not required constitutionally.
(c) DISPOSITION OF FORFEITED CONVEYANCE.—When a conveyance is
forfeited under this section, the Attorney General may—
(1) keep the conveyance for official use;
(2) sell the conveyance and shall use the proceeds to pay the ex-
penses of the proceedings for forfeiture and sale, including seizure,
maintenance of custody, advertising, and court costs;
(3) require the Administrator of General Services, or the Adminis-
trator of the Maritime Administration if appropriate under section
203(i) of the Federal Property and Administrative Services Act of
1949 (40 U.S.C. 484(i)), to take custody of the conveyance and dispose
of it under law; or
(4) dispose of the conveyance under a compromise made by the At-
torney General.
(d) PROOF IN FORFEITURE ACTION.—In a civil action brought to forfeit
a conveyance seized under this section, a person claiming the conveyance
has the burden of proof. However, the Attorney General first must show
probable cause in bringing the action. In deciding whether probable cause
exists, each of the following is prima facie evidence that an alien involved
in an alleged violation had not received prior authorization to come to,
enter, or reside in the United States or had come to, entered, or remained
in the United States unlawfully:
(1) A record of a judicial or administrative proceeding in which the
alien’s status was an issue and in which it was decided that the alien
had not received prior authorization to come to, enter, or reside in the
United States or had come to, entered, or remained in the United
States unlawfully.
(2) Official records of the Immigration and Naturalization Service or
the Department of State showing that the alien had not received prior
authorization to come to, enter, or reside in the United States or had
come to, entered, or remained in the United States unlawfully.
(3) Testimony by an immigration officer, having personal knowledge
about the alien’s status, that the alien had not received prior authoriza-
tion to come to, enter, or reside in the United States or had come to,
entered, or remained in the United States unlawfully.
(e) ADMISSIBILITY OF VIDEOTAPED TESTIMONY.—Notwithstanding the
Federal Rules of Evidence (28 App. U.S.C.), the videotaped (or otherwise
audiovisually preserved) deposition of a witness to a violation of subsection
312
(a) of this section who has been deported or otherwise expelled from the
United States, or who otherwise is unable to testify, may be admitted into
evidence in an action brought for that violation if the witness was available
for cross examination and the deposition otherwise complies with the Fed-
eral Rules of Evidence.
(f) APPLICATION OF LAWS RELATED TO SEIZURES AND FORFEITURES
FOR VIOLATING CUSTOMS LAWS.—Laws related to the seizure, forfeiture,
and condemnation of property for violating the customs laws, disposition of
the property or the proceeds of sale of the property, compromise of the for-
feiture or a related claim, and award of compensation to an informer be-
cause of the forfeiture apply to a seizure or forfeiture under this section
if not inconsistent with this section. However, duties and powers of persons
in seizing and forfeiting property under the customs laws shall be carried
out by persons the Attorney General authorizes to conduct a seizure or for-
feiture under this section.
(g) INDIVIDUALS AUTHORIZED TO MAKE ARRESTS.—Only officers and
employees of the Service designated by the Attorney General, individually
or by class, and all other officers and employees who enforce criminal laws,
may make arrests for a violation of this section.
§ 10148. Improper entry of aliens
(a) CRIMINAL OFFENSES.—An alien shall be punished as provided in sub-
section (b) of this section if the alien—
(1) enters or attempts to enter the United States—
(A) at a time or place not designated by an immigration officer;
or
(B) by a willfully false or misleading representation or the will-
ful concealment of a material fact; or
(2) eludes inspection or examination by an immigration officer.
(b) CRIMINAL PENALTIES.—An alien violating subsection (a) of this sec-
tion shall be—
(1) fined under title 18, imprisoned for not more than 6 months, or
both, for a first violation; and
(2) fined under title 18, imprisoned for not more than 2 years, or
both, for a subsequent violation.
(c) VENUE.—A proceeding under this section may be brought in any judi-
cial district in which the violation occurs or in which the alien is appre-
hended.
§ 10149. Reentry of removed aliens
(a) CRIMINAL PENALTY.—(1) Except as otherwise provided in this sec-
tion, an alien who has been denied admission, excluded, deported, or re-
moved, or who has departed the United States while an exclusion, deporta-
313
tion, or removal order is outstanding and then enters, attempts to enter,
or is found in the United States shall be fined under title 18, imprisoned
for not more than 2 years, or both.
(2)(A) In subparagraphs (B)–(E) of this paragraph, ‘‘removal’’ includes
an agreement in which an alien stipulates to removal at any time.
(B) If the alien’s removal followed conviction of at least 3 misdemeanors
involving drugs, crimes against the person, or both, or a felony (except an
aggravated felony) and the alien enters, attempts to enter, or is found in
the United States after November 17, 1988, the alien shall be fined under
title 18, imprisoned for not more than 10 years, or both.
(C) If the alien’s removal followed conviction of an aggravated felony and
the alien enters, attempts to enter, or is found in the United States after
November 17, 1988, the alien shall be fined under title 18, imprisoned for
not more than 20 years, or both.
(D) If the alien has been removed from the United States under section
6107 of this title because the alien was inadmissible under section 6310(b)
of this title or has been removed from the United States under chapter 69
of this title, and then, without the permission of the Attorney General, en-
ters or attempts to enter the United States, the alien shall be fined under
title 18 and imprisoned for 10 years. The sentence under this subparagraph
may not run concurrently with any other sentence.
(E) If the alien has been removed from the United States under section
6715(d)(2) of this title and then, without the permission of the Attorney
General, enters, attempts to enter, or is at any time found in, the United
States (unless the Attorney General expressly has consented to the alien’s
reentry), the alien shall be fined under title 18, imprisoned for not more
than 10 years, or both.
(b) COMPLETION OF SENTENCE OF IMPRISONMENT.—An alien removed
under section 6715(d)(2) of this title who enters, attempts to enter, or is
at any time found in, the United States (unless the Attorney General ex-
pressly has consented to the alien’s reentry) shall be incarcerated for the
remainder of the sentence of imprisonment that was pending at the time
of removal without any reduction for parole or supervised release. The alien
is subject to all other penalties related to the reentry of aliens who have
been removed.
(c) NONAPPLICATION.—Subsection (a) of this section does not apply to
an alien—
(1) when the Attorney General specifically consents to the alien’s re-
applying for admission before the alien—
(A) reboards at a place outside the United States; or
314
(B) applies for admission from a foreign territory contiguous to
the United States; or
(2) previously denied admission and removed who establishes that
prior consent by the Attorney General is not required under this title
or other prior law.
(d) VENUE.—A proceeding under this section may be brought in any judi-
cial district in which the violation occurs or in which the alien is appre-
hended.
(e) CHALLENGE TO VALIDITY OF ORDER.—In a proceeding under this
section begun after April 24, 1996, an alien may not challenge the validity
of the order described in subsection (a) of this section unless the alien dem-
onstrates that—
(1) the alien exhausted any administrative remedies that may have
been available to seek relief against the order;
(2) the proceeding at which the order was issued improperly deprived
the alien of the opportunity for judicial review; and
(3) the entry of the order fundamentally was unfair.
§ 10150. Assisting certain excludable aliens to enter the
United States
A person knowingly assisting or conspiring to assist an alien to enter the
United States shall be fined under title 18, imprisoned for not more than
10 years, or both, if—
(1) the alien is inadmissible under section 6309(a)(1)–(5) or (7) of
this title because of a conviction for an aggravated felony and the as-
sistance occurred after November 17, 1988; or
(2) the alien is inadmissible under section 6310 of this title.
§ 10151. Importing aliens for immoral purposes
(a) CRIMINAL PENALTY.—A person shall be fined under title 18, impris-
oned for not more than 10 years, or both, if the person—
(1) imports or attempts to import an alien into the United States
for prostitution or another immoral purpose; or
(2) holds, attempts to hold, maintains, controls, supports, employs,
or harbors an alien in furthering an importation violating clause (1)
of this subsection.
(b) VENUE.—A proceeding under this section may be brought in any judi-
cial district into which the alien is brought in violation of this section or
in which a violation of this section occurs.
(c) TESTIMONY OF SPOUSE.—Testimony of a spouse is admissible and is
competent evidence in a proceeding under this section.
315
§ 10152. Failure to depart
(a) CRIMINAL OFFENSES.—An alien against whom the Attorney General
has issued a final order of removal because of any ground described in chap-
ter 65 of this title shall be punished as provided in subsection (c) of this
section if the alien—
(1) willfully does not—
(A) leave the United States within the 90-day period that begins
on—
(i) the date of the Attorney General’s final order; or
(ii) if judicial review occurs, the date of the court’s final
order.
(B) apply timely in good faith for a document the alien needs
to leave the United States; or
(C) appear for removal at the time and place the Attorney Gen-
eral requires under the order of removal; or
(2) takes an action to prevent or hamper, or conspires to prevent or
hamper, the alien from leaving the United States under the removal
order.
(b) ATTEMPTED RELIEF NOT PROHIBITED.—Subsection (a) of this sec-
tion does not prohibit an alien from trying to obtain—
(1) a cancellation of the removal order;
(2) an exemption from the removal order; or
(3) a release from incarceration or custody.
(c) CRIMINAL PENALTIES.—An alien violating subsection (a) of this sec-
tion shall be fined under title 18, imprisoned for not more than 4 years,
or both. However, if the alien is deportable because of a ground described
in section 6505, 6506(a), (b), (c), (d), or (f), 6507(a), (b)(1), (2), (3), or
(5), (c), or (d), 6508, or 6509 of this title, the alien shall be fined under
title 18, imprisoned for not more than 10 years, or both.
(d) SUSPENSION OF SENTENCE AND RELEASE.—(1) For good cause, the
court sentencing an alien convicted of violating subsection (a) of this section
may suspend the sentence and order the alien released on conditions the
court prescribes.
(2) In deciding whether good cause exists for releasing an alien under
paragraph (1) of this subsection, the court shall consider factors such as—
(A) the age, health, and period of detention of the alien;
(B) the effect of the alien’s release on the security of the United
States and public peace or safety;
(C) the likelihood that the alien will resume or follow a course of
conduct that made or would make the alien deportable;
316
(D) efforts the alien or a representative of a country to which the
alien is ordered removed makes to expedite the alien’s leaving the Unit-
ed States;
(E) the reason why the Federal Government cannot obtain a pass-
port or other travel document or removal facilities from a country to
which the alien is ordered removed; and
(F) the eligibility of the alien for discretionary release under the im-
migration laws.
§ 10153. Marriage to evade immigration laws
(a) CRIMINAL PENALTY.—An individual who knowingly marries to evade
the immigration laws shall be fined under title 18, imprisoned for not more
than 5 years, or both.
(b) VENUE.—A proceeding under this section may be brought in any judi-
cial district in which the violation occurs or in which the individual is appre-
hended.
§ 10154. Misrepresentations in applications for adjustment
of status
An individual knowingly and willfully making a material misrepresenta-
tion in an application or supporting document filed under section 9302 or
9304 of this title, or making or using a false document in connection with
the application, shall be fined under title 18, imprisoned for not more than
5 years, or both.
§ 10155. Establishing a commercial enterprise to evade im-
migration laws
(a) CRIMINAL PENALTY.—An individual who knowingly establishes a
commercial enterprise to evade the immigration laws shall be fined under
title 18, imprisoned for not more than 5 years, or both.
(b) VENUE.—A proceeding under this section may be brought in any judi-
cial district in which the violation occurs or in which the individual is appre-
hended.
§ 10156. Failure to disclose role as preparer of false applica-
tion for immigration benefits
(a) DEFINITION.—In this section, ‘‘falsely make’’ means to prepare at
any time, or provide after September 29, 1996, an application or document
with knowledge or in reckless disregard of the fact that the application or
document—
(1) contains a false, fictitious, or fraudulent statement or material
representation;
(2) has no basis in law or fact; or
(3) otherwise fails to state a fact which is material to the purpose
for which it was submitted.
317
(b) FIRST VIOLATION.—In any matter within the jurisdiction of the Im-
migration and Naturalization Service, an individual who knowingly and will-
fully does not disclose, conceals, or covers up the fact that the individual,
for any person and for a fee or other remuneration, has prepared or assisted
in preparing an application for immigration benefits which was falsely made
shall be—
(1) fined under title 18, imprisoned for not more than 5 years, or
both; and
(2) prohibited from preparing or assisting in preparing, whether or
not for a fee or other remuneration, another similar application.
(c) SUBSEQUENT VIOLATIONS.—An individual convicted of violating sub-
section (b) of this section who knowingly and willfully prepares or assists
in preparing an application for immigration benefits under this title (except
subchapter I of chapter 7, chapter 47, subchapters II and III of chapter
131, and chapters 133 and 135), or regulations prescribed under this title
(except any of those provisions), whether or not for a fee or other remunera-
tion and regardless of whether in any matter within the jurisdiction of the
Service, shall be—
(1) fined under title 18, imprisoned for not more than 15 years, or
both; and
(2) prohibited from preparing or assisting in preparing another simi-
lar application.
§ 10157. Failure to comply with terms of release under su-
pervision
An alien who willfully does not comply with a regulation prescribed or re-
quirement issued under section 6715(c) of this title or who knowingly gives
false information in response to an inquiry under section 6715(c) shall be
fined under title 18, imprisoned for not more than one year, or both.
SUBTITLE III—UNLAWFUL EMPLOYMENT
PRACTICES
CHAPTER
Sec.
111.
UNLAWFUL EMPLOYMENT OF ALIENS ................................................
11101
113.
IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES .......
11301
CHAPTER 111—UNLAWFUL EMPLOYMENT OF ALIENS
Sec.
11101.
Definitions.
11102.
Employment of unauthorized aliens.
11103.
Employment verification system.
11104.
Evaluating and changing employment verification system.
11105.
Compliance.
11106.
Criminal penalties and civil actions for pattern or practice violations.
11107.
Indemnity prohibition.
11108.
Conspicuous statement requirement.
11109.
Preemption of state and local law.
318
§ 11101. Definitions
In this chapter—
(1) ‘‘entity’’ includes a federal department, agency, or instrumental-
ity.
(2) ‘‘unauthorized alien’’ means, with respect to employment at a
particular time, an alien who is not at that time—
(A) lawfully admitted for permanent residence; or
(B) authorized to be employed in that employment by this title
or by the Attorney General.
§ 11102. Employment of unauthorized aliens
(a) PROHIBITIONS.—(1) A person or other entity—
(A) may not hire, or recruit or refer for a fee, for employment in
the United States an alien knowing the alien is an unauthorized alien;
(B) may not hire for employment in the United States an individual
without complying with section 11103 of this title; or
(C) if the person or entity is an agricultural association, agricultural
employer, or farm labor contractor (as defined in section 3 of the Mi-
grant and Seasonal Agricultural Worker Protection Act (29 U.S.C.
1802)), may not recruit or refer for a fee for employment in the United
States an individual without complying with section 11103 of this title.
(2) A person or other entity may not continue to employ in the United
States an alien knowing the alien is an unauthorized alien.
(b) USE OF LABOR THROUGH CONTRACT.—A person or other entity vio-
lates subsection (a)(1)(A) of this section if the person uses a contract, sub-
contract, or exchange that is made, renegotiated, or extended after Novem-
ber 6, 1986, to obtain the labor of an alien in the United States, knowing
the alien is an unauthorized alien.
(c) DEFENSE.—Good faith compliance with section 11103 of this title is
an affirmative defense under subsection (a)(1)(A) of this section.
(d) STATE EMPLOYMENT AGENCY DOCUMENTATION.—For purposes of
subsections (a)(1)(B) and (C) and (c) of this section, a person or other en-
tity hiring an individual referred by a State employment agency (as defined
by the Attorney General) is deemed to have complied with section 11103
of this title if the person or entity has and retains (for the period and in
the way described in section 11103(c)) appropriate documentation of the re-
ferral certifying that the agency complied with section 11103 for that indi-
vidual.
(e) TREATMENT OF DOCUMENTATION FOR CERTAIN EMPLOYEES.—(1)
For purposes of this section, an employer that is a member of an associa-
tion of at least 2 employers is deemed to have complied with the require-
ments of section 11103 of this title with respect to the hiring of an em-
319
ployee and is not liable for civil penalties described in section 11105(e) of
this title if—
(A) the individual hired is a member of a collective-bargaining unit
and was employed, under a collective bargaining agreement between at
least one employee organization and the association, by an employer
that is a member of the association; and
(B) the prior employer (or an agent of the association for the em-
ployer) complied with the requirements of section 11103 of this title
with respect to the employment of the individual, within the lesser of
3 years or the period of time that the individual is authorized to be
employed in the United States.
(2)(A) For purposes of subsection (a)(1)(A) of this section, a member of
an association that hires for employment in the United States an individual
who is an alien not authorized to work in the United States and that relies
on paragraph (1) of this subsection to comply with the requirements of sec-
tion 11103 of this title is presumed to have known at the time of hiring
or afterward that the individual was an alien not authorized to work in the
United States.
(B) The presumption may be rebutted by the employer only by presenting
clear and convincing evidence that the employer did not know (and reason-
ably could not have known) that the individual at the time of hiring or
afterward was an alien not authorized to work in the United States.
(C) Subparagraph (A) of this paragraph does not apply in a prosecution
under section 11106(a) of this title.
(f) NONAPPLICATION.—(1) Subsection (a)(1) of this section does not
apply to hiring, recruiting, or referring that occurred before November 6,
1986.
(2) Subsection (a)(2) of this section does not apply to continuing employ-
ment of an alien hired before November 6, 1986.
§ 11103. Employment verification system
(a) ATTESTATION AFTER EXAMINING DOCUMENTS.—(1) A person or
other entity hiring, or recruiting or referring for a fee, an individual for em-
ployment in the United States must attest, under penalty of perjury and
on a form the Attorney General prescribes by regulation, that the person
or entity has verified that the individual is not an unauthorized alien by ex-
amining—
(A) a document specified in paragraph (3) of this subsection; or
(B)(i) a document specified in paragraph (4) of this subsection; and
(ii) a document specified in paragraph (5) of this subsection.
(2) A person or other entity has examined a document as required by
paragraph (1) of this subsection if the person or entity has found that the
320
document reasonably appears on its face to be genuine. The person or entity
is not required to request, and the individual is not required to provide, an-
other document if the individual has provided a document or combination
of documents complying with paragraph (1) that reasonably appear on their
face to be genuine.
(3) A document required under paragraph (1)(A) of this subsection is an
individual’s—
(A) United States passport; or
(B) resident alien card, alien registration card, or other document
the Attorney General designates if the document—
(i) contains the individual’s photograph and other identifying in-
formation the Attorney General prescribes by regulation as accept-
able;
(ii) is evidence of authorization of employment in the United
States; and
(iii) contains security features to make it resistant to tampering,
counterfeiting, and fraudulent use.
(4) A document required under paragraph (1)(B)(i) of this subsection is
an individual’s—
(A) social security account number card (unless it states on its face
that issuance of the card does not authorize employment in the United
States); or
(B) other documentation providing authorization of employment in
the United States that the Attorney General prescribes by regulation
as acceptable.
(5) A document required under paragraph (1)(B)(ii) of this subsection is
an individual’s—
(A) driver’s license or similar document issued for identification by
a State, if it contains the individual’s photograph or other identifying
information the Attorney General prescribes by regulation as accept-
able; or
(B) for an individual less than 16 years of age or in a State that
does not issue an identification document other than a driver’s license,
documentation of personal identity that the Attorney General pre-
scribes by regulation as providing a reliable means of identification.
(6) If the Attorney General finds, by regulation, that any document de-
scribed in paragraph (3), (4), or (5) of this subsection as establishing em-
ployment authorization or identity does not reliably establish the authoriza-
tion or identity or is being used fraudulently to an unacceptable degree, the
Attorney General may prohibit or place conditions on its use for purposes
of this section.
321
(b) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION.—The
individual must attest, under penalty of perjury and on the form prescribed
under subsection (a) of this section, that the individual is—
(1) a national of the United States;
(2) an alien lawfully admitted for permanent residence; or
(3) an alien authorized by this title or by the Attorney General to
be hired, recruited, or referred for the employment.
(c) RETENTION OF VERIFICATION FORM.—After the form is completed
as provided in subsections (a) and (b) of this section, the person or entity
must retain the form and make it available for inspection by officers and
employees of the Immigration and Naturalization Service, the Special Coun-
sel for Immigration-Related Unfair Employment Practices, or the Secretary
of Labor during a period beginning on the date of the hiring, recruiting,
or referral and ending—
(1) if the individual is recruited or referred for a fee but not hired,
3 years after the date of the recruiting or referral; or
(2) if the individual is hired, 3 years after the date of hire or one
year after the date the employment ends, whichever is later.
(d) COPYING DOCUMENTATION.—A person or other entity may copy a
document presented by an individual under this section and retain the copy,
but only (except as otherwise permitted by law) to comply with this section.
(e) GOOD FAITH COMPLIANCE.—(1) Except as provided in paragraph (2)
of this subsection, a person or other entity is deemed to have complied with
a requirement of this section (notwithstanding a technical or procedural fail-
ure to meet the requirement that occurred after September 29, 1996) if
there was a good faith attempt to comply with the requirement.
(2) Paragraph (1) of this subsection does not apply—
(A) if—
(i) the Service (or another enforcement agency) has explained
to the person or entity the basis for the failure;
(ii) the person or entity has been provided at least 10 business
days (beginning after the date of the explanation) to correct the
failure; and
(iii) the person or entity has not corrected the failure voluntarily
within that time; or
(B) to a person or other entity that has engaged or is engaging in
a pattern or practice of violations of section 11102(a)(1)(A) or (2) of
this title.
(f) LIMITATION ON USE OF FORMS.—A form completed under this sec-
tion, and information contained in or appended to the form, may be used
322
only to enforce this title and sections 1001, 1028, 1546, and 1621 of title
18.
(g) NATIONAL IDENTIFICATION CARD NOT AUTHORIZED.—This chapter
does not authorize the establishment, issuance, or use of a national identi-
fication card.
§ 11104. Evaluating and changing employment verification
system
(a) DEFINITION.—In this section, ‘‘major change’’ means a change that
would—
(1) require an individual to present a new card or other document
(designed specifically to verify identity, employment eligibility, or both)
at the time of hiring, recruitment, or referral;
(2) provide for a telephone verification system under which—
(A) an employer, recruiter, or referrer must give an officer or
employee of the Federal Government information about the immi-
gration status of a prospective employee; and
(B) the officer or employee of the Government gives the em-
ployer, recruiter, or referrer a verification code that the employer,
recruiter, or referrer must record; or
(3) require a change in a card used for accounting under the Social
Security Act (42 U.S.C 301 et seq.), including a change requiring that
the only social security account number card that may be presented to
comply with section 11103(a)(4)(A) of this title is a card in a counter-
feit-resistant form consistent with section 205(c)(2)(G) (last sentence)
of the Social Security Act (42 U.S.C. 405(c)(2)(G) (last sentence)).
(b) PRESIDENTIAL MONITORING AND IMPROVEMENTS.—(1) The Presi-
dent shall—
(A) provide for monitoring and evaluating the degree to which the
employment verification system under section 11103 of this title pro-
vides a secure system to verify employment eligibility in the United
States; and
(B) examine the suitability of using existing federal and state identi-
fication systems to verify employment eligibility in the United States.
(2) To the extent the President finds the system is not a secure system
to verify employment eligibility in the United States, the President shall
make changes in and additions to the system necessary to establish a secure
system to verify employment eligibility in the United States—
(A) subject to subsections (c)–(f) of this section; and
(B) after considering the results of any demonstration project con-
ducted under subsection (g) of this section.
323
(c) CHANGE REQUIREMENTS.—A change proposed by the President
under subsection (b) of this section must be designed so that the system,
as changed, will meet the following requirements:
(1) The system must be able to verify reliably whether—
(A) an individual with the identity claimed by an employee or
prospective employee is eligible to work; and
(B) the employee or prospective employee is claiming the iden-
tity of another individual.
(2) If the system requires that a document be presented to or exam-
ined by an employer, the document must be in a form resistant to
counterfeiting and tampering.
(3) Personal information used by the system may be made available
only to the extent necessary to verify that an individual is not an unau-
thorized alien.
(4) The system must protect the privacy and security of personal in-
formation and identifiers used in the system.
(5) A verification that an individual is eligible to be employed in the
United States may be withheld or revoked only if the individual is an
unauthorized alien.
(6) The system may not be used for law enforcement, except to en-
force this title and sections 1001, 1028, 1546, and 1621 of title 18.
(7) If the system requires an individual to present a new card or
other document (designed specifically to verify employment eligibility)
at the time of hiring, recruitment, or referral, the document may not
be required to be presented for another purpose (other than under this
title (except subchapter I of chapter 7, chapter 47, subchapters II and
III of chapter 131, and chapters 133 and 135) or for enforcement of
sections 1001, 1028, 1546, and 1621 of title 18) or to be carried on
the individual.
(d) NOTICES TO CONGRESS BEFORE MAKING CHANGES.—(1) Before im-
plementing a change, the President must submit a written report of the pro-
posed change to the Committees on the Judiciary of the Senate and the
House of Representatives. If the President proposes a change affecting so-
cial security account number cards, the President also shall submit the re-
port to the Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives. A report under this para-
graph shall include recommendations for civil and criminal penalties for un-
authorized use or disclosure of the information or identifiers used in the sys-
tem. The report shall be submitted at least—
(A) 60 days before the date the change is to be implemented if the
change is not a major change;
324
(B) one year before the date the change is to be implemented if the
change is a major change as defined in subsection (a)(3) of this sec-
tion; or
(C) 2 years before the date the change is to be implemented if the
change is a major change as defined in subsection (a)(1) or (2) of this
section.
(2) The President shall publish promptly in the Federal Register the sub-
stance of a major change reported to Congress under this subsection.
(e) CONGRESSIONAL REVIEW OF MAJOR CHANGES.—(1) The Committees
on the Judiciary of the Senate and the House of Representatives shall—
(A) publish in the Congressional Record the substance of a major
change submitted by the President under subsection (d) of this section;
(B) hold hearings on the feasibility and desirability of the change;
and
(C) within the 2-year period before the change is to be implemented,
report to their respective Houses findings on whether the change
should be made.
(2) A major change may be implemented only if an amount is appro-
priated by law specifically to implement the change.
(f) PAYMENT OF COSTS.—Costs incurred under this section in developing
and implementing a change described in subsection (a)(3) of this section
may not be paid out of a trust fund established under the Social Security
Act (42 U.S.C. 301 et seq.).
(g) DEMONSTRATION PROJECTS.—The President may undertake dem-
onstration projects consistent with subsection (c) of this section of different
changes in the system. A project may not be for more than 5 years. The
President shall report to Congress on the results of each project conducted
under this subsection.
§ 11105. Compliance
(a) COMPLAINTS AND INVESTIGATIONS.—The Attorney General shall es-
tablish procedures for—
(1) an individual or entity to file a written, signed complaint of a
violation of section 11102(a) or 11107(a) of this title;
(2) investigating a complaint that, on its face, has a substantial
probability of validity;
(3) investigating other violations of section 11102(a) or 11107(a) of
this title that the Attorney General considers appropriate; and
(4) designating a unit in the Immigration and Naturalization Service
that has, as its primary duty, the prosecution under this section of vio-
lations of section 11102(a) or 11107(a) of this title.
325
(b) AUTHORITY IN CONDUCTING INVESTIGATIONS AND HEARINGS.—(1)
In conducting an investigation or hearing under this section—
(A) the immigration officer or administrative law judge conducting
the investigation or hearing shall have reasonable access to examine
evidence of a person or other entity being investigated;
(B) the administrative law judge may subpena, if necessary, the at-
tendance of witnesses and the production of evidence at any designated
place; and
(C) an immigration officer the Commissioner of Immigration and
Naturalization designates may subpoena the attendance of witnesses
and the production of evidence at any designated place before a com-
plaint is filed under paragraph (2) of this subsection.
(2) If a person or other entity disobeys a subpena issued under this sub-
section, an appropriate district court of the United States, on application
by the Attorney General, may issue an order to comply with the subpena.
The court may punish a failure to comply with the order of the court as
a contempt of court.
(c) HEARINGS.—(1) The Attorney General may issue an order referred
to in subsections (d)–(f) of this section against a person or other entity for
violating section 11102(a) or 11107(a) of this title only after providing no-
tice and an opportunity for a hearing. A hearing must be requested within
a reasonable time (established by the Attorney General, but at least 30
days) after the date of the notice.
(2) If a timely request for a hearing is not made, the Attorney General
may issue an order referred to in subsections (d)–(f) of this section without
a hearing.
(3) If a timely request for a hearing is made, the hearing shall be con-
ducted by an administrative law judge as provided in section 554 of title
5 at the nearest practicable place to the place where the person or entity
resides or the alleged violation occurred. If the judge finds by a preponder-
ance of the evidence that the person or entity has violated section 11102(a)
or 11107(a) of this title, the judge shall—
(A) state findings of fact; and
(B) issue and have served on the person an order referred to in sub-
sections (d)–(f) of this section.
(d) ORDERS INVOLVING HIRING, RECRUITING, AND REFERRAL VIOLA-
TIONS.—(1) For a violation of section 11102(a)(1)(A) or (2) of this title,
an order issued under this section—
(A) shall require the person or other entity to cease and desist from
the violation and to pay a civil penalty of—
326
(i) at least $250, but not more than $2,000, for each unauthor-
ized alien involved in the violation;
(ii) at least $2,000, but not more than $5,000, for each unau-
thorized alien involved in the violation if the person or entity pre-
viously was subject to one order under this subsection; or
(iii) at least $3,000, but not more than $10,000, for each unau-
thorized alien involved in the violation if the person or entity pre-
viously was subject to more than one order under this subsection;
and
(B) may require the person or entity —
(i) to comply for not more than 3 years with section 11103 of
this title or, if applicable, with section 11104 of this title, for indi-
viduals hired or recruited or referred for a fee; and
(ii) to take other appropriate remedial action.
(2) Under paragraph (1) of this subsection, if the person or entity is com-
posed of distinct, physically separate subdivisions each of which provides
separately for the hiring, recruiting, or referring for employment, without
reference to the practices of, and not under control of or common control
with, another subdivision, each subdivision is deemed a separate person or
entity.
(e) ORDERS INVOLVING PAPERWORK VIOLATIONS.—For a violation of
section 11102(a)(1) (B) or (C) of this title, an order issued under this sec-
tion shall require the person or entity to pay a civil penalty of at least $100,
but not more than $1,000, for each individual about whom the violation oc-
curred. In deciding on the amount of the penalty, consideration shall be
given to—
(1) the size of the business of the employer;
(2) the good faith of the employer;
(3) the seriousness of the violation;
(4) whether the individual was an unauthorized alien; and
(5) any history of prior violations.
(f) ORDERS INVOLVING INDEMNITY VIOLATIONS.—For a violation of sec-
tion 11107(a) of this title, an order issued under this section may provide
for the penalty described in section 11107(b) of this title.
(g) FINALITY OF DECISIONS AND ORDERS.—(1) The decision and order
of an administrative law judge become the final decision and order of the
Attorney General unless—
(A)(i) within 30 days after the date of the decision and order, an
official delegated by regulation to exercise review authority over the de-
cision and order modifies or vacates the decision and order; and
327
(ii) within 30 days after the date of being modified or vacated, the
decision and order are referred to the Attorney General pursuant to
regulations; or
(B) within 60 days after the date of the decision and order (if not
modified or vacated), the decision and order are referred to the Attor-
ney General pursuant to regulations.
(2) If the decision and order are referred to the Attorney General under
paragraph (1) of this subsection, the decision and order of the Attorney
General become the final decision and order.
(3) The Attorney General may not delegate the Attorney General’s au-
thority under this subsection to an entity having review authority over im-
migration-related matters.
(h) JUDICIAL REVIEW.—(1) Except as provided in paragraph (2) of this
subsection, a person or other entity adversely affected by a final order im-
posing a civil penalty under this section may file a petition for review of
the order in the court of appeals for the appropriate circuit within 45 days
after the date the final order is issued.
(2) An order of the Attorney General issued without a hearing as pro-
vided in subsection (c)(2) of this section is not appealable.
(i) ENFORCEMENT OF ORDERS.—If a person or other entity does not
comply with a final order issued under this section, the Attorney General
shall bring a civil action in an appropriate district court of the United
States to seek compliance with the order. The validity and appropriateness
of the order may not be reviewed in the action.
§ 11106. Criminal penalties and civil actions for pattern or
practice violations
(a) CRIMINAL PENALTY.—A person or other entity engaging in a pattern
or practice of violations of section 11102(a)(1) (A) or (2) of this title shall
be fined not more than $3,000 for each unauthorized alien involved in a
violation (notwithstanding the provisions of title 18 on the amount of fines),
imprisoned for not more than 6 months for the entire pattern or practice,
or both.
(b) CIVIL ACTIONS.—If the Attorney General has reason to believe that
a person or other entity is engaged in a pattern or practice of employment,
recruitment, or referral in violation of section 11102(a) (1)(A) or (2) of this
title, the Attorney General may bring a civil action in the appropriate dis-
trict court of the United States for relief the Attorney General considers
necessary.
§ 11107. Indemnity prohibition
(a) GENERAL.—A person or other entity hiring, recruiting, or referring
an individual for employment may not require the individual to post a bond
328
or security, to pay or agree to pay an amount, or to give another financial
guarantee or indemnity, against potential liability arising under this chapter
related to the hiring, recruiting, or referral.
(b) CIVIL PENALTY.—After notice and an opportunity for a hearing
under section 11105 of this title, a person or other entity found to have
violated subsection (a) of this section—
(1) is liable to the Federal Government for a civil penalty of $1,000;
and
(2) may be ordered administratively to return any amount received
in violation of subsection (a) of this section to the individual or, if the
individual cannot be located, to pay that amount to the general fund
of the Treasury.
§ 11108. Conspicuous statement requirement
In providing for the documentation or endorsement of authorization for
employment in the United States for an alien (except an alien lawfully ad-
mitted for permanent residence), the Attorney General shall provide that a
limitation on the period or type of employment or employer be stated con-
spicuously on the documentation or endorsement.
§ 11109. Preemption of state and local law
This chapter preempts state and local law imposing a civil or criminal
penalty (except through licensing and similar laws) on a person employing,
or recruiting or referring for a fee for employment, an unauthorized alien.
CHAPTER 113—IMMIGRATION-RELATED UNFAIR
EMPLOYMENT PRACTICES
Sec.
11301.
Definition.
11302.
Immigration-related unfair employment practices.
11303.
Special Counsel for Immigration-Related Unfair Employment Practices.
11304.
Filing charges of unfair practices.
11305.
Investigating charges and filing complaints.
11306.
Hearings on complaints.
11307.
Authority in conducting investigations and hearings.
11308.
Orders of administrative law judges.
11309.
Judicial review of final orders.
11310.
Judicial enforcement of administrative orders.
11311.
Attorney fees.
11312.
Certain authority not affected.
§ 11301. Definition
In this chapter, ‘‘protected individual’’—
(1) means an individual who is—
(A) a national of the United States; or
(B) an alien lawfully admitted for permanent residence, lawfully
admitted for temporary residence under section 9302 of this title
or section 210(a) of the Immigration and Nationality Act, admit-
329
ted as a refugee under section 5105 of this title, or granted asy-
lum under section 5106 of this title; but
(2) does not include an alien who—
(A) did not apply for naturalization within 6 months after first
becoming eligible (because of a period of lawful permanent resi-
dence) to apply or, if later, before May 7, 1987; or
(B) timely applied but was not naturalized within 2 years after
applying (excluding time taken by the Immigration and Natu-
ralization Service in processing the application), unless the alien
establishes that the alien is actively pursuing naturalization.
§ 11302. Immigration-related unfair employment practices
(a) IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES.—It is an
immigration-related unfair employment practice for a person or other en-
tity—
(1) to discriminate against an individual (except an unauthorized
alien as defined in section 11101 of this title) in hiring, or recruiting
or referring for employment for a fee, the individual or discharging the
individual from employment because of the individual’s national origin
or, if the individual is a protected individual, because of the individual’s
citizenship status; or
(2) after November 28, 1990, to intimidate, threaten, coerce, or re-
taliate against an individual—
(A) for the purpose of interfering with a right or privilege under
this chapter; or
(B) because the individual intends to file or has filed a charge
or complaint or assisted or participated in an investigation, hear-
ing, or proceeding under this chapter.
(b) CERTAIN DOCUMENT PRACTICES AS BEING UNFAIR.—It is an immi-
gration-related unfair employment practice for a person or other entity to
request, after September 29, 1996, for purposes of satisfying the require-
ments of section 11103 of this title, more or different documents than are
required under section 11103, or to refuse to honor a document that on its
face reasonably appears to be genuine, if the request or refusal is made for
the purpose or with the intent of discriminating against an individual in vio-
lation of subsection (a)(1) of this section.
(c) NONAPPLICATION.—Subsection (a)(1) of this section does not apply
to—
(1) a person or other entity employing fewer than 4 employees;
(2) discrimination by a person or other entity because of an individ-
ual’s national origin if the discrimination by that person or entity
330
against that individual is covered by section 703 of the Civil Rights Act
of 1964 (42 U.S.C. 2000e–2); or
(3) discrimination because of citizenship status that is—
(A) required to comply with a law, regulation, or executive
order;
(B) required by a contract of the Federal Government or a state
or local government; or
(C) found by the Attorney General to be essential for an em-
ployer to do business with a federal department, agency, or instru-
mentality or a state or local governmental entity.
(d) PREFERENCE FOR EQUALLY QUALIFIED NATIONALS.—It is not an
immigration-related unfair employment practice for a person or other entity
to hire, recruit, or refer an individual who is a national of the United States
instead of an individual who is an alien if both individuals are equally quali-
fied.
§ 11303. Special Counsel for Immigration-Related Unfair
Employment Practices
(a) APPOINTMENT.—The President shall appoint, by and with the advice
and consent of the Senate, a Special Counsel for Immigration-Related Un-
fair Employment Practices. The Special Counsel serves in the Department
of Justice for a term of 4 years. When the position is vacant, the President
may designate an officer or employee of the Federal Government to act as
Special Counsel during the vacancy.
(b) DUTIES AND POWERS.—The Special Counsel shall carry out the du-
ties and powers given the Special Counsel under this chapter.
(c) DISSEMINATION
OF INFORMATION.—(1) In cooperation with the
Chairman of the Equal Employment Opportunity Commission, the Secretary
of Labor, and the Administrator of the Small Business Administration, the
Special Counsel shall conduct a campaign—
(A) to disseminate information on the rights and remedies prescribed
under this chapter and title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) related to immigration-related unfair employment
practices; and
(B) to increase the knowledge of employers, employees, and the pub-
lic about employer and employee rights, responsibilities, and remedies
under this chapter and title VII.
(2) To carry out this subsection, the Special Counsel—
(A) to the extent considered appropriate and subject to the availabil-
ity of appropriations, may make contracts with public and private orga-
nizations for outreach activities under the campaign; and
331
(B) shall consult with the Chairman, the Secretary, and the heads
of other appropriate agencies.
(3) Not more than $10,000,000 may be appropriated for each fiscal year
to carry out this subsection.
(d) OUTREACH PROGRAMS.—Not more than $3,000,000 of the unobli-
gated balances remaining in the account described in section 9307(b) of this
title is available in each fiscal year for grants, contracts, and cooperative
agreements to community-based organizations for outreach programs and
shall be administered by the Special Counsel for Immigration-Related Un-
fair Employment Practices. Amounts under this subsection are in addition
to amounts appropriated to the Special Counsel for those purposes.
Amounts available under this subsection may not be used by the Special
Counsel to establish regional offices.
(e) PAY.—The Special Counsel is entitled to a rate of pay that is not
more than the maximum annual rate of basic pay payable under section
5376 of title 5.
(f) REGIONAL OFFICES.—Under regulations prescribed by the Attorney
General, the Special Counsel shall establish regional offices necessary to
carry out the duties and powers of the Special Counsel.
§ 11304. Filing charges of unfair practices
(a) FILING CHARGES.—(1) Except as provided in subsection (c) of this
section, a charge of an immigration-related unfair employment practice may
be filed with the Special Counsel for Immigration-Related Unfair Employ-
ment Practices by—
(A) a person alleging to be adversely affected directly by the practice,
or by another person for that person; or
(B) an officer of the Immigration and Naturalization Service alleging
that the practice has occurred or is occurring.
(2) A charge filed under this subsection must be in writing and under
oath and contain information the Attorney General requires.
(b) SERVICE OF NOTICE OF CHARGES.—The Special Counsel shall serve
a notice of a charge filed under subsection (a) of this section (including the
date, place, and circumstances of the alleged practice) on the person or
other entity alleged to have committed the practice. The notice shall be
served by certified mail not later than 10 days after the charge is filed.
(c) LIMITATIONS ON FILING CHARGES.—A charge of an immigration-re-
lated unfair employment practice involving discrimination because of na-
tional origin may not be filed under this section if a charge of that practice
based on the same set of facts has been filed with the Equal Employment
Opportunity Commission under title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.), unless the charge is dismissed as being outside the
332
scope of title VII. A charge about an employment practice may not be filed
with the Equal Employment Opportunity Commission under title VII if a
charge about that practice based on the same set of facts has been filed
under this section, unless the charge is dismissed as being outside the scope
of this chapter.
§ 11305. Investigating charges and filing complaints
(a) SPECIAL COUNSEL.—(1) The Special Counsel for Immigration-Relat-
ed Unfair Employment Practices shall investigate each charge filed under
section 11304 of this title. Not later than 120 days after the charge has
been filed, the Special Counsel shall decide whether there is reasonable
cause to believe the charge is true and whether to file a complaint about
the charge with an administrative law judge.
(2) On the Special Counsel’s own initiative, the Special Counsel may in-
vestigate an immigration-related unfair employment practice and, subject to
subsection (c) of this section, file a complaint about the practice with an
administrative law judge.
(3) Failure to file a complaint within the 120-day period does not prevent
the Special Counsel from investigating the charge or filing a complaint with
an administrative law judge during the 90-day period referred to in sub-
section (b) of this section.
(b) PRIVATE ACTIONS.—Subject to subsection (c) of this section, if a
charge alleges knowing and intentional discriminatory activity or a pattern
or practice of discriminatory activity, and the Special Counsel does not file
a complaint with an administrative law judge within 120 days after the
charge is filed with the Special Counsel under subsection (a)(1) of this sec-
tion, the Special Counsel shall notify the person that filed the charge during
the 120-day period of the decision not to file a complaint. The person may
file a complaint directly with an administrative law judge not later than 90
days after receiving the notice.
(c) TIME LIMITATION.—A complaint about an immigration-related unfair
employment practice may not be filed with an administrative law judge if
the practice occurred more than 180 days before the charge about that
practice was filed with the Special Counsel. This subsection does not prevent
subsequently amending a charge or complaint under section 11306(c)(1) of
this title.
(d) DISCRIMINATION DEEMED TO HAVE OCCURRED.—An individual in-
timidated, threatened, coerced, or retaliated against in violation of section
11302(a)(2) of this title is deemed to have been discriminated against under
this section.
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§ 11306. Hearings on complaints
(a) DESIGNATING ADMINISTRATIVE LAW JUDGES.—A hearing on a com-
plaint alleging an immigration-related unfair employment practice shall be
conducted by an administrative law judge who—
(1) is specially designated by the Attorney General as having special
training in employment discrimination; and
(2) to the extent possible, conducts hearings only on complaints in-
volving immigration-related unfair employment practices under this
chapter.
(b) NOTICE OF HEARINGS.—When a complaint alleging an immigration-
related unfair employment practice is filed with an administrative law judge,
the judge shall issue and have served on the person or other entity named
in the complaint a copy of the complaint and a notice of the hearing. The
date of the hearing shall be at least 5 days after the complaint is served.
(c) PLEADINGS, APPEARANCES, AND PARTIES.—(1) On motion of the
party that filed the complaint, the judge may amend the complaint at any
time before issuing an order based on the complaint.
(2) The person or entity named in the complaint may file an answer to
the original or amended complaint, appear in person or otherwise, and
present testimony.
(3) The person that filed the charge with the Special Counsel for Immi-
gration-Related Unfair Employment Practices is a party to the proceeding
before the judge and in any appeal from that proceeding.
(4) The judge conducting the hearing may allow any other person to in-
tervene and to present testimony.
(d) TRANSCRIPT AND ADDITIONAL TESTIMONY OR ARGUMENT.—A tran-
script shall be prepared of the testimony in the hearing. After the transcript
is prepared, the judge, by notice, may provide for further testimony or hear
argument.
§ 11307. Authority in conducting investigations and hear-
ings
(a) GENERAL.—In conducting an investigation or hearing under this
chapter—
(1) the Special Counsel for Immigration-Related Unfair Employment
Practices and the administrative law judge conducting the investigation
or hearing, under regulations prescribed by the Attorney General, shall
have reasonable access to examine evidence of a person or other entity
being investigated; and
(2) the administrative law judge may subpena the attendance of wit-
nesses and the production of evidence at any designated place.