SUBCHAPTER II—IMMIGRATION
Subchapter Referred to in Other Sections
This subchapter is referred to in
Part I—Selection System
§1151. Worldwide level of immigration
(a) In general
Exclusive of aliens described in subsection (b) of this section, aliens born in a foreign state or dependent area who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence are limited to—
(1) family-sponsored immigrants described in
(2) employment-based immigrants described in
(3) for fiscal years beginning with fiscal year 1995, diversity immigrants described in
(b) Aliens not subject to direct numerical limitations
Aliens described in this subsection, who are not subject to the worldwide levels or numerical limitations of subsection (a) of this section, are as follows:
(1)(A) Special immigrants described in subparagraph (A) or (B) of
(B) Aliens who are admitted under
(C) Aliens whose status is adjusted to permanent residence under
(D) Aliens whose removal is canceled under
(E) Aliens provided permanent resident status under
(2)(A)(i)
(ii) Aliens admitted under
(B) Aliens born to an alien lawfully admitted for permanent residence during a temporary visit abroad.
(c) Worldwide level of family-sponsored immigrants
(1)(A) The worldwide level of family-sponsored immigrants under this subsection for a fiscal year is, subject to subparagraph (B), equal to—
(i) 480,000, minus
(ii) the sum of the number computed under paragraph (2) and the number computed under paragraph (4), plus
(iii) the number (if any) computed under paragraph (3).
(B)(i) For each of fiscal years 1992, 1993, and 1994, 465,000 shall be substituted for 480,000 in subparagraph (A)(i).
(ii) In no case shall the number computed under subparagraph (A) be less than 226,000.
(2) The number computed under this paragraph for a fiscal year is the sum of the number of aliens described in subparagraphs (A) and (B) of subsection (b)(2) of this section who were issued immigrant visas or who otherwise acquired the status of aliens lawfully admitted to the United States for permanent residence in the previous fiscal year.
(3)(A) The number computed under this paragraph for fiscal year 1992 is zero.
(B) The number computed under this paragraph for fiscal year 1993 is the difference (if any) between the worldwide level established under paragraph (1) for the previous fiscal year and the number of visas issued under
(C) The number computed under this paragraph for a subsequent fiscal year is the difference (if any) between the maximum number of visas which may be issued under
(4) The number computed under this paragraph for a fiscal year (beginning with fiscal year 1999) is the number of aliens who were paroled into the United States under
(A) who did not depart from the United States (without advance parole) within 365 days; and
(B) who (i) did not acquire the status of aliens lawfully admitted to the United States for permanent residence in the two preceding fiscal years, or (ii) acquired such status in such years under a provision of law (other than subsection (b) of this section) which exempts such adjustment from the numerical limitation on the worldwide level of immigration under this section.
(5) If any alien described in paragraph (4) (other than an alien described in paragraph (4)(B)(ii)) is subsequently admitted as an alien lawfully admitted for permanent residence, such alien shall not again be considered for purposes of paragraph (1).
(d) Worldwide level of employment-based immigrants
(1) The worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to—
(A) 140,000, plus
(B) the number computed under paragraph (2).
(2)(A) The number computed under this paragraph for fiscal year 1992 is zero.
(B) The number computed under this paragraph for fiscal year 1993 is the difference (if any) between the worldwide level established under paragraph (1) for the previous fiscal year and the number of visas issued under
(C) The number computed under this paragraph for a subsequent fiscal year is the difference (if any) between the maximum number of visas which may be issued under
(e) Worldwide level of diversity immigrants
The worldwide level of diversity immigrants is equal to 55,000 for each fiscal year.
(f) Rules for determining whether certain aliens are immediate relatives
(1) Age on petition filing date
Except as provided in paragraphs (2) and (3), for purposes of subsection (b)(2)(A)(i) of this section, a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of
(2) Age on parent's naturalization date
In the case of a petition under
(3) Age on marriage termination date
In the case of a petition under
(June 27, 1952, ch. 477, title II, ch. 1, §201,
Amendments
2002—Subsec. (f).
2000—Subsec. (b)(2)(A)(i).
1996—Subsec. (b)(1)(C).
Subsec. (b)(1)(D).
Subsec. (c)(1)(A)(ii).
Subsec. (c)(4), (5).
1994—Subsec. (b)(2)(A)(i).
1991—Subsec. (c)(3).
Subsec. (d)(2).
1990—
1981—Subsec. (a).
1980—Subsec. (a).
1978—Subsec. (a).
1976—Subsec. (a).
Subsecs. (c) to (e).
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Effective Date of 2002 Amendment
"(1) a petition for classification under section 204 of the Immigration and Nationality Act (
"(2) a petition for classification under section 204 of the Immigration and Nationality Act (
"(3) an application pending before the Department of Justice or the Department of State on or after such date."
Effective Date of 1996 Amendment
Amendment by section 308(e)(5), (g)(8)(A)(i) of
Effective Date of 1994 Amendments
Amendment by
Section 40701(d) of
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
Section 20 of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Extension of Posthumous Benefits to Surviving Spouses, Children, and Parents
"(a)
"(1)
"(2)
"(A)
"(B)
"(3)
"(A)
"(B)
"(C)
"(b)
"(1)
"(2)
"(A) served honorably in an active duty status in the military, air, or naval forces of the United States;
"(B) died as a result of injury or disease incurred in or aggravated by combat; and
"(C) was granted posthumous citizenship under section 329A of the Immigration and Nationality Act (
"(c)
"(1)
"(A)
"(B)
"(2)
"(3)
"(A) served honorably in an active duty status in the military, air, or naval forces of the United States;
"(B) died as a result of injury or disease incurred in or aggravated by combat; and
"(C) was granted posthumous citizenship under section 329A of the Immigration and Nationality Act (
"(d)
"(1)
"(2)
"(A) served honorably in an active duty status in the military, air, or naval forces of the United States;
"(B) died as a result of injury or disease incurred in or aggravated by combat; and
"(C) was granted posthumous citizenship under section 329A of the Immigration and Nationality Act (
"(e)
[Section 1703 of
Temporary Reduction in Diversity Visas
"(1) Beginning in fiscal year 1999, subject to paragraph (2), the number of visas available for a fiscal year under section 201(e) of the Immigration and Nationality Act [
"(2) In no case shall the reduction under paragraph (1) for a fiscal year exceed the amount by which—
"(A) one-half of the total number of individuals described in subclauses (I), (II), (III), and (IV) of section 309(c)(5)(C)(i) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [
"(B) the total of the reductions in available visas under this subsection for all previous fiscal years."
Transition Relating to Death of Citizen Spouse
Section 101(c) of
Inapplicability of Numerical Limitations for Certain Aliens Residing in the United States Virgin Islands
The numerical limitations described in subsec. (a) of this section not to apply in the case of certain aliens residing in the Virgin Islands seeking adjustment of their status to permanent resident alien status, and such adjustment of status not to result in any reduction in the number of aliens who may acquire the status of aliens lawfully admitted to the United States for permanent residence under this chapter, see section 2(c)(1) of
Exemption From Numerical Limitations for Certain Aliens Who Applied for Adjustment to Status of Permanent Resident Aliens on or Before June 1, 1978
Section 19 of
"(1) qualified as a nonpreference immigrant under section 203(a)(8) of such Act [
"(2) was determined to be exempt from the labor certification requirement of section 212(a)(14) of such Act [former
"(3) applied for adjustment of status to that of an alien lawfully admitted for permanent residence."
Select Commission on Immigration and Refugee Policy
Section 4 of
Select Commission on Western Hemisphere Immigration
Section 21(a)–(d) and (f)–(h) of
Termination of Quota Deductions
Section 10 of
Section Referred to in Other Sections
This section is referred to in
§1151a. Repealed. Pub. L. 94–571, §7(g), Oct. 20, 1976, 90 Stat. 2706
Section,
Effective Date of Repeal
Repeal effective on first day of first month which begins more than 60 days after Oct. 20, 1976, see section 10 of
§1152. Numerical limitations on individual foreign states
(a) Per country level
(1) Nondiscrimination
(A) Except as specifically provided in paragraph (2) and in
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.
(2) Per country levels for family-sponsored and employment-based immigrants
Subject to paragraphs (3), (4), and (5), the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of
(3) Exception if additional visas available
If because of the application of paragraph (2) with respect to one or more foreign states or dependent areas, the total number of visas available under both subsections (a) and (b) of
(4) Special rules for spouses and children of lawful permanent resident aliens
(A) 75 percent of 2nd preference set-aside for spouses and children not subject to per country limitation
(i) In general
Of the visa numbers made available under
(ii) "2–A floor" defined
In this paragraph, the term "2–A floor" means, for a fiscal year, 77 percent of the total number of visas made available under
(B) Treatment of remaining 25 percent for countries subject to subsection (e)
(i) In general
Of the visa numbers made available under
(ii) "Subsection (e) ceiling" defined
In clause (i), the term "subsection (e) ceiling" means, for a foreign state or dependent area, 77 percent of the maximum number of visas that may be made available under
(C) Treatment of unmarried sons and daughters in countries subject to subsection (e)
In the case of a foreign state or dependent area to which subsection (e) of this section applies, the number of immigrant visas that may be made available to natives of the state or area under
(i) 23 percent of the maximum number of visas that may be made available under
(ii) the number (if any) by which the maximum number of visas that may be made available under
whichever is greater.
(D) Limiting pass down for certain countries subject to subsection (e)
In the case of a foreign state or dependent area to which subsection (e) of this section applies, if the total number of visas issued under
(5) Rules for employment-based immigrants
(A) Employment-based immigrants not subject to per country limitation if additional visas available
If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of
(B) Limiting fall across for certain countries subject to subsection (e) of this section
In the case of a foreign state or dependent area to which subsection (e) of this section applies, if the total number of visas issued under
(b) Rules for chargeability
Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) of this section when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. For the purposes of this chapter the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that (1) an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) of this section for that fiscal year; (2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) of this section for that fiscal year; (3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and (4) an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien's birth may be charged to the foreign state of either parent.
(c) Chargeability for dependent areas
Any immigrant born in a colony or other component or dependent area of a foreign state overseas from the foreign state, other than an alien described in
(d) Changes in territory
In the case of any change in the territorial limits of foreign states, the Secretary of State shall, upon recognition of such change issue appropriate instructions to all diplomatic and consular offices.
(e) Special rules for countries at ceiling
If it is determined that the total number of immigrant visas made available under subsections (a) and (b) of
(1) the ratio of the visa numbers made available under
(2) except as provided in subsection (a)(4) of this section, the proportion of the visa numbers made available under each of paragraphs (1) through (4) of
(3) except as provided in subsection (a)(5) of this section, the proportion of the visa numbers made available under each of paragraphs (1) through (5) of
Nothing in this subsection shall be construed as limiting the number of visas that may be issued to natives of a foreign state or dependent area under
(June 27, 1952, ch. 477, title II, ch. 1, §202,
Amendments
2000—Subsec. (a)(2).
Subsec. (a)(5).
Subsec. (e)(3).
1996—Subsec. (a)(1).
1991—Subsec. (a)(4)(A).
1990—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1988—Subsec. (b).
Subsec. (c).
Subsec. (e).
1986—Subsec. (b).
Subsec. (c).
Subsec. (e).
1981—Subsec. (a).
Subsec. (b).
1980—Subsec. (a).
Subsec. (e).
1978—Subsec. (c).
1976—Subsec. (a).
Subsec. (c).
Subsec. (e).
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1961—Subsec. (e).
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by section 8(c) of
Effective Date of 1986 Amendments
Amendment by
Section 311(b) of
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Treatment of Hong Kong Under Per Country Levels
Section 103 of
[Section 103 of
Inapplicability of Numerical Limitations for Certain Aliens Residing in the United States Virgin Islands
The numerical limitations described in text not to apply in the case of certain aliens residing in the Virgin Islands seeking adjustment of their status to permanent resident alien status, and such adjustment of status not to result in any reduction in the number of aliens who may acquire the status of aliens lawfully admitted to the United States for permanent residence under this chapter, see section 2(c)(1) of
Exemption From Numerical Limitations for Certain Aliens Who Applied for Adjustment to Status of Permanent Resident Aliens on or Before June 1, 1978
For provisions rendering inapplicable the numerical limitations contained in this section to certain aliens who had applied for adjustment to the status of permanent resident alien on or before June 1, 1978, see section 19 of
Approval by Secretary of State Treating Taiwan (China) as Separate Foreign State for Purposes of Numerical Limitation on Immigrant Visas
Section Referred to in Other Sections
This section is referred to in
§1153. Allocation of immigrant visas
(a) Preference allocation for family-sponsored immigrants
Aliens subject to the worldwide level specified in
(1) Unmarried sons and daughters of citizens
Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400, plus any visas not required for the class specified in paragraph (4).
(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens
Qualified immigrants—
(A) who are the spouses or children of an alien lawfully admitted for permanent residence, or
(B) who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence,
shall be allocated visas in a number not to exceed 114,200, plus the number (if any) by which such worldwide level exceeds 226,000, plus any visas not required for the class specified in paragraph (1); except that not less than 77 percent of such visa numbers shall be allocated to aliens described in subparagraph (A).
(3) Married sons and married daughters of citizens
Qualified immigrants who are the married sons or married daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400, plus any visas not required for the classes specified in paragraphs (1) and (2).
(4) Brothers and sisters of citizens
Qualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas in a number not to exceed 65,000, plus any visas not required for the classes specified in paragraphs (1) through (3).
(b) Preference allocation for employment-based immigrants
Aliens subject to the worldwide level specified in
(1) Priority workers
Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):
(A) Aliens with extraordinary ability
An alien is described in this subparagraph if—
(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and
(iii) the alien's entry into the United States will substantially benefit prospectively the United States.
(B) Outstanding professors and researchers
An alien is described in this subparagraph if—
(i) the alien is recognized internationally as outstanding in a specific academic area,
(ii) the alien has at least 3 years of experience in teaching or research in the academic area, and
(iii) the alien seeks to enter the United States—
(I) for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
(II) for a comparable position with a university or institution of higher education to conduct research in the area, or
(III) for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.
(C) Certain multinational executives and managers
An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability
(A) In general
Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver of job offer
(i) National interest waiver
Subject to clause (ii), the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
(ii) Physicians working in shortage areas or veterans facilities
(I) In general
The Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if—
(aa) the alien physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and
(bb) a Federal agency or a department of public health in any State has previously determined that the alien physician's work in such an area or at such facility was in the public interest.
(II) Prohibition
No permanent resident visa may be issued to an alien physician described in subclause (I) by the Secretary of State under
(III) Statutory construction
Nothing in this subparagraph may be construed to prevent the filing of a petition with the Attorney General for classification under
(IV) Effective date
The requirements of this subsection do not affect waivers on behalf of alien physicians approved under subsection (b)(2)(B) of this section before the enactment date of this subsection. In the case of a physician for whom an application for a waiver was filed under subsection (b)(2)(B) of this section prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to subsection (b)(2)(B) of this section except that the alien is required to have worked full time as a physician for an aggregate of 3 years (not including time served in the status of an alien described in
(C) Determination of exceptional ability
In determining under subparagraph (A) whether an immigrant has exceptional ability, the possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning or a license to practice or certification for a particular profession or occupation shall not by itself be considered sufficient evidence of such exceptional ability.
(3) Skilled workers, professionals, and other workers
(A) In general
Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2):
(i) Skilled workers
Qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
(ii) Professionals
Qualified immigrants who hold baccalaureate degrees and who are members of the professions.
(iii) Other workers
Other qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
(B) Limitation on other workers
Not more than 10,000 of the visas made available under this paragraph in any fiscal year may be available for qualified immigrants described in subparagraph (A)(iii).
(C) Labor certification required
An immigrant visa may not be issued to an immigrant under subparagraph (A) until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of
(4) Certain special immigrants
Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified special immigrants described in
(5) Employment creation
(A) In general
Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise (including a limited partnership)—
(i) in which such alien has invested (after November 29, 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and
(ii) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters).
(B) Set-aside for targeted employment areas
(i) In general
Not less than 3,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who invest in a new commercial enterprise described in subparagraph (A) which will create employment in a targeted employment area.
(ii) "Targeted employment area" defined
In this paragraph, the term "targeted employment area" means, at the time of the investment, a rural area or an area which has experienced high unemployment (of at least 150 percent of the national average rate).
(iii) "Rural area" defined
In this paragraph, the term "rural area" means any area other than an area within a metropolitan statistical area or within the outer boundary of any city or town having a population of 20,000 or more (based on the most recent decennial census of the United States).
(C) Amount of capital required
(i) In general
Except as otherwise provided in this subparagraph, the amount of capital required under subparagraph (A) shall be $1,000,000. The Attorney General, in consultation with the Secretary of Labor and the Secretary of State, may from time to time prescribe regulations increasing the dollar amount specified under the previous sentence.
(ii) Adjustment for targeted employment areas
The Attorney General may, in the case of investment made in a targeted employment area, specify an amount of capital required under subparagraph (A) that is less than (but not less than ½ of) the amount specified in clause (i).
(iii) Adjustment for high employment areas
In the case of an investment made in a part of a metropolitan statistical area that at the time of the investment—
(I) is not a targeted employment area, and
(II) is an area with an unemployment rate significantly below the national average unemployment rate,
the Attorney General may specify an amount of capital required under subparagraph (A) that is greater than (but not greater than 3 times) the amount specified in clause (i).
(D) Full-time employment defined
In this paragraph, the term "full-time employment" means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.
(6) Special rules for "K" special immigrants
(A) Not counted against numerical limitation in year involved
Subject to subparagraph (B), the number of immigrant visas made available to special immigrants under
(B) Counted against numerical limitations in following year
(i) Reduction in employment-based immigrant classifications
The number of visas made available in any fiscal year under paragraphs (1), (2), and (3) shall each be reduced by 1/3 of the number of visas made available in the previous fiscal year to special immigrants described in
(ii) Reduction in per country level
The number of visas made available in each fiscal year to natives of a foreign state under
(iii) Reduction in employment-based immigrant classifications within per country ceiling
In the case of a foreign state subject to
(c) Diversity immigrants
(1) In general
Except as provided in paragraph (2), aliens subject to the worldwide level specified in
(A) Determination of preference immigration
The Attorney General shall determine for the most recent previous 5-fiscal-year period for which data are available, the total number of aliens who are natives of each foreign state and who (i) were admitted or otherwise provided lawful permanent resident status (other than under this subsection) and (ii) were subject to the numerical limitations of
(B) Identification of high-admission and low-admission regions and high-admission and low-admission states
The Attorney General—
(i) shall identify—
(I) each region (each in this paragraph referred to as a "high-admission region") for which the total of the numbers determined under subparagraph (A) for states in the region is greater than 1/6 of the total of all such numbers, and
(II) each other region (each in this paragraph referred to as a "low-admission region"); and
(ii) shall identify—
(I) each foreign state for which the number determined under subparagraph (A) is greater than 50,000 (each such state in this paragraph referred to as a "high-admission state"), and
(II) each other foreign state (each such state in this paragraph referred to as a "low-admission state").
(C) Determination of percentage of worldwide immigration attributable to high-admission regions
The Attorney General shall determine the percentage of the total of the numbers determined under subparagraph (A) that are numbers for foreign states in high-admission regions.
(D) Determination of regional populations excluding high-admission states and ratios of populations of regions within low-admission regions and high-admission regions
The Attorney General shall determine—
(i) based on available estimates for each region, the total population of each region not including the population of any high-admission state;
(ii) for each low-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the low-admission regions; and
(iii) for each high-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the high-admission regions.
(E) Distribution of visas
(i) No visas for natives of high-admission states
The percentage of visas made available under this paragraph to natives of a high-admission state is 0.
(ii) For low-admission states in low-admission regions
Subject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a low-admission region is the product of—
(I) the percentage determined under subparagraph (C), and
(II) the population ratio for that region determined under subparagraph (D)(ii).
(iii) For low-admission states in high-admission regions
Subject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a high-admission region is the product of—
(I) 100 percent minus the percentage determined under subparagraph (C), and
(II) the population ratio for that region determined under subparagraph (D)(iii).
(iv) Redistribution of unused visa numbers
If the Secretary of State estimates that the number of immigrant visas to be issued to natives in any region for a fiscal year under this paragraph is less than the number of immigrant visas made available to such natives under this paragraph for the fiscal year, subject to clause (v), the excess visa numbers shall be made available to natives (other than natives of a high-admission state) of the other regions in proportion to the percentages otherwise specified in clauses (ii) and (iii).
(v) Limitation on visas for natives of a single foreign state
The percentage of visas made available under this paragraph to natives of any single foreign state for any fiscal year shall not exceed 7 percent.
(F) "Region" defined
Only for purposes of administering the diversity program under this subsection, Northern Ireland shall be treated as a separate foreign state, each colony or other component or dependent area of a foreign state overseas from the foreign state shall be treated as part of the foreign state, and the areas described in each of the following clauses shall be considered to be a separate region:
(i) Africa.
(ii) Asia.
(iii) Europe.
(iv) North America (other than Mexico).
(v) Oceania.
(vi) South America, Mexico, Central America, and the Caribbean.
(2) Requirement of education or work experience
An alien is not eligible for a visa under this subsection unless the alien—
(A) has at least a high school education or its equivalent, or
(B) has, within 5 years of the date of application for a visa under this subsection, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience.
(3) Maintenance of information
The Secretary of State shall maintain information on the age, occupation, education level, and other relevant characteristics of immigrants issued visas under this subsection.
(d) Treatment of family members
A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of
(e) Order of consideration
(1) Immigrant visas made available under subsection (a) or (b) of this section shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General (or in the case of special immigrants under
(2) Immigrant visa numbers made available under subsection (c) of this section (relating to diversity immigrants) shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State for the fiscal year involved.
(3) Waiting lists of applicants for visas under this section shall be maintained in accordance with regulations prescribed by the Secretary of State.
(f) Authorization for issuance
In the case of any alien claiming in his application for an immigrant visa to be described in
(g) Lists
For purposes of carrying out the Secretary's responsibilities in the orderly administration of this section, the Secretary of State may make reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year within each of the categories under subsections (a), (b), and (c) of this section and to rely upon such estimates in authorizing the issuance of visas. The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa, but the Secretary shall reinstate the registration of any such alien who establishes within 2 years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond the alien's control.
(h) Rules for determining whether certain aliens are children
(1) In general
For purposes of subsections (a)(2)(A) and (d) of this section, a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of
(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d) of this section, the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
(2) Petitions described
The petition described in this paragraph is—
(A) with respect to a relationship described in subsection (a)(2)(A) of this section, a petition filed under
(B) with respect to an alien child who is a derivative beneficiary under subsection (d) of this section, a petition filed under
(3) Retention of priority date
If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.
(June 27, 1952, ch. 477, title II, ch. 1, §203,
References in Text
The enactment date of this subsection, referred to in subsec. (b)(2)(B)(ii)(IV), probably means the date of enactment of
Amendments
2002—Subsec. (b)(5)(A).
Subsec. (b)(5)(A)(i) to (iii).
Subsec. (b)(5)(B)(i).
Subsec. (b)(5)(D).
Subsec. (h).
2000—Subsec. (b)(4).
1999—Subsec. (b)(2)(B).
1994—Subsec. (b)(5)(B), (C).
Subsec. (b)(6)(C).
1991—Subsec. (b)(1).
Subsec. (b)(1)(C).
Subsec. (b)(2)(A).
Subsec. (b)(2)(B).
Subsec. (b)(3)(A).
Subsec. (b)(4), (5)(A).
Subsec. (b)(6).
Subsec. (f).
1990—Subsec. (a).
Subsec. (a)(7).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
1980—Subsec. (a).
Subsec. (d).
Subsec. (f).
Subsec. (g).
Subsec. (h).
1978—Subsec. (a)(1) to (7).
Subsec. (a)(8).
1976—Subsec. (a).
Subsec. (e).
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsecs. (f) to (h).
1959—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4).
1957—Subsec. (a)(1).
Effective Date of 2002 Amendments
"(1) A petition under section 204(a)(1)(H) of the Immigration and Nationality Act (
"(2) A petition under section 216A(c)(1)(A) of such Act (
Amendment by
Effective Date of 2000 Amendment
Effective Date of 1994 Amendment
Amendment by section 219(c) of
Effective Date of 1991 Amendments
Amendment by
Amendment by
Effective Date of 1990 Amendment
Amendment by sections 111, 121(a), 131, 162(a)(1) of
Amendment by section 603(a)(3) of
Effective Date of 1980 Amendment
Amendment by section 203(c) of
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
GAO Study
"(a)
"(b)
"(1) the number of immigrant investors that have received visas under the immigrant investor program in each year since the inception of the program;
"(2) the country of origin of the immigrant investors;
"(3) the localities where the immigrant investors are settling and whether those investors generally remain in the localities where they initially settle;
"(4) the number of immigrant investors that have sought to become citizens of the United States;
"(5) the types of commercial enterprises that the immigrant investors have established; and
"(6) the types and number of jobs created by the immigrant investors."
Recapture of Unused Employment-Based Immigrant Visas
"(1)
"(2)
"(A)
"(B)
"(C)
"(3)
Temporary Reduction in Workers' Visas
"(1) Beginning in the fiscal year following the fiscal year in which a visa has been made available under section 203(b)(3)(A)(iii) of the Immigration and Nationality Act [
"(2) In no case shall the reduction under paragraph (1) for a fiscal year exceed the amount by which—
"(A) the number computed under subsection (d)(2)(A) [section 203(d)(2)(A) of
"(B) the total of the reductions in available visas under this subsection for all previous fiscal years."
Diversity Immigrant Lottery Fee
Eligibility for Visas for Polish Applicants for 1995 Diversity Immigrant Program
"(a)
"(1) was selected as a diversity immigrant under such section for fiscal year 1995;
"(2) applied for adjustment of status to that of an alien lawfully admitted for permanent residence pursuant to section 245 of such Act [
"(3) was not determined by the Attorney General to be excludable under section 212 of such Act [
"(4) did not become an alien lawfully admitted for permanent residence during fiscal year 1995.
"(b)
"(c)
Soviet Scientists Immigration
"(1) previous experience in implementing the Soviet Scientists Immigration Act of 1992 [
"(2) any changes that those officials would recommend in the regulations prescribed under that Act."
[For definition of "Secretary" as used in section 1304(d) of
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Soviet Scientists Immigration Act of 1992'.
"SEC. 2. DEFINITIONS.
"For purposes of this Act—
"(1) the term 'Baltic states' means the sovereign nations of Latvia, Lithuania, and Estonia;
"(2) the term 'independent states of the former Soviet Union' means the sovereign nations of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan; and
"(3) the term 'eligible independent states and Baltic scientists' means aliens—
"(A) who are nationals of any of the independent states of the former Soviet Union or the Baltic states; and
"(B) who are scientists or engineers who have expertise in nuclear, chemical, biological or other high technology fields or who are working on nuclear, chemical, biological or other high-technology defense projects, as defined by the Attorney General.
"SEC. 3. WAIVER OF JOB OFFER REQUIREMENT.
"The requirement in section 203(b)(2)(A) of the Immigration and Nationality Act (
"SEC. 4. CLASSIFICATION OF INDEPENDENT STATES SCIENTISTS AS HAVING EXCEPTIONAL ABILITY.
"(a)
"(b)
"(c)
"(d)
"(1) The period beginning on the date of the enactment of this Act [Oct. 24, 1992] and ending 4 years after such date.
"(2) The period beginning on the date of the enactment of the Security Assistance Act of 2002 [Sept. 30, 2002] and ending 4 years after such date."
Pilot Immigration Program
"(a) Of the visas otherwise available under section 203(b)(5) of the Immigration and Nationality Act (
"(b) For purposes of the pilot program established in subsection (a), beginning on October 1, 1992, but no later than October 1, 1993, the Secretary of State, together with the Secretary of Homeland Security, shall set aside 3,000 visas annually for 15 years to include such aliens as are eligible for admission under section 203(b)(5) of the Immigration and Nationality Act [
"(c) In determining compliance with section 203(b)(5)(A)(iii)[(ii)] of the Immigration and Nationality Act [
"(d) In processing petitions under section 204(a)(1)(H) of the Immigration and Nationality Act (
[
"(1) any proposal for a regional center pending before the Attorney General (whether for an initial decision or on appeal) on or after the date of the enactment of this Act; and
"(2) any of the following petitions, if filed on or after the date of the enactment of this Act:
"(A) A petition under section 204(a)(1)(H) of the Immigration and Nationality Act (
"(B) A petition under section 216A(c)(1)(A) of such Act (
[Section 116(b) of
Transition for Spouses and Minor Children of Legalized Aliens
Section 112 of
"(a)
"(1)
"(2)
"(A) the sum of the number of aliens described in subparagraphs (A) and (B) of section 201(b)(2) of the Immigration and Nationality Act [
"(B) 239,000.
"(b)
"(c)
"(1) temporary or permanent residence status under section 210 of the Immigration and Nationality Act [
"(2) temporary or permanent residence status under section 245A of the Immigration and Nationality Act [
"(3) permanent residence status under section 202 of the Immigration Reform and Control Act of 1986 [
"(d)
Transition for Employees of Certain United States Businesses Operating in Hong Kong
Section 124 of
"(a)
"(1)
"(2)
"(3)
"(A) is a resident of Hong Kong and is employed in Hong Kong except for temporary absences at the request of the employer and has been employed in Hong Kong for at least 12 consecutive months as an officer or supervisor or in a capacity that is managerial, executive, or involves specialized knowledge, by a business entity which (i) is owned and organized in the United States (or is the subsidiary or affiliate of a business owned and organized in the United States), (ii) employs at least 100 employees in the United States and at least 50 employees outside the United States, and (iii) has a gross annual income of at least $50,000,000, and
"(B) has an offer of employment from such business entity in the United States as an officer or supervisor or in a capacity that is managerial, executive, or involves specialized knowledge, which offer (i) is effective from the time of filing the petition for classification under this section through and including the time of entry into the United States and (ii) provides for salary and benefits comparable to the salary and benefits provided to others with similar responsibilities and experience within the same company.
"(b)
"(c)
"(d)
"(1)
"(2)
"(3)
"(4)
"(5)
[Section 124 of
Diversity Transition for Aliens Who Are Natives of Certain Adversely Affected Foreign States
Section 217(b) of
"(1)
"(2)
"(3)
Section 132 of
"(a)
"(b)
"(1) is a native of a foreign state that was identified as an adversely affected foreign state for purposes of section 314 of the Immigration Reform and Control Act of 1986 [
"(2) has a firm commitment for employment in the United States for a period of at least 1 year (beginning on the date of admission under this section), and
"(3) except as provided in subsection (c), is admissible as an immigrant.
"(c)
"(d)
"(e)
"(f)
[Section 302(b)(6)(C) of
[Section 302(b)(6)(D)(i) of
One-Year Diversity Transition for Aliens Who Have Been Notified of Availability of NP–5 Visas
Section 133 of
Transition for Displaced Tibetans
Section 134 of
Expedited Issuance of Lebanese Second and Fifth Preference Visas
Section 155 of
"(a)
"(b)
"(1) are natives of Lebanon,
"(2) are not firmly resettled in any foreign country outside Lebanon, and
"(3) as of the date of the enactment of this Act [Nov. 29, 1990], are the beneficiaries of a petition approved to accord status under section 203(a)(2) or 203(a)(5) of the Immigration and Nationality Act [
or who are the spouse or child of such an alien if accompanying or following to join the alien."
[Section 155 of
Order of Consideration
Section 162(a)(2) of
Making Visas Available to Immigrants From Underrepresented Countries To Enhance Diversity in Immigration
Making Visas Available to Nonpreference Immigrants
References to Conditional Entry Requirements of Subsection (a)(7) of This Section in Other Federal Laws
Section 203(h) of
Retroactive Adjustment of Refugee Status
For adjustment of the status of refugees paroled into the United States pursuant to
Entitlement to Preferential Status
Section 9 of
"(a) The amendments made by this Act [see Short Title of 1976 Amendment note set out under
"(b) An alien chargeable to the numerical limitation contained in section 21(e) of the Act of October 3, 1965 (
Nonquota Immigrant Status of Certain Relatives of United States Citizens; Issuance of Nonquota Immigrant Visas on Basis of Petitions Filed Prior to January 1, 1962
Nonquota Immigrant Status of Skilled Specialists; Issuance of Nonquota Immigrant Visas on Basis of Petitions Filed Prior to April 1, 1962
Issuance of Nonquota Immigrant Visas to Certain Eligible Orphans
[Section 23(c) of
Adopted Sons or Adopted Daughters, Preference Status
Section 5(c) of
Issuance of Nonquota Immigrant Visas on Basis of Petitions Approved Prior to July 1, 1958
Section 12A of
Repeal of section 12A of
Issuance of Nonquota Immigrant Visas on Basis of Petitions Approved Prior to July 1, 1957
Section 12 of
Repeal of section 12 of
Special Nonquota Immigrant Visas for Refugees
Section 6 of
Repeal of section 6 of
Nonquota Immigrant Status of Spouses and Children of Certain Aliens
Section 4 of
Repeal of section 4 of
Section Referred to in Other Sections
This section is referred to in
§1154. Procedure for granting immigrant status
(a) Petitioning procedure
(1)(A)(i) Any citizen of the United States claiming that an alien is entitled to classification by reason of a relationship described in paragraph (1), (3), or (4) of
(ii) An alien spouse described in the second sentence of
(iii)(I) An alien who is described in subclause (II) may file a petition with the Attorney General under this clause for classification of the alien (and any child of the alien) if the alien demonstrates to the Attorney General that—
(aa) the marriage or the intent to marry the United States citizen was entered into in good faith by the alien; and
(bb) during the marriage or relationship intended by the alien to be legally a marriage, the alien or a child of the alien has been battered or has been the subject of extreme cruelty perpetrated by the alien's spouse or intended spouse.
(II) For purposes of subclause (I), an alien described in this subclause is an alien—
(aa)(AA) who is the spouse of a citizen of the United States;
(BB) who believed that he or she had married a citizen of the United States and with whom a marriage ceremony was actually performed and who otherwise meets any applicable requirements under this chapter to establish the existence of and bona fides of a marriage, but whose marriage is not legitimate solely because of the bigamy of such citizen of the United States; or
(CC) who was a bona fide spouse of a United States citizen within the past 2 years and—
(aaa) whose spouse died within the past 2 years;
(bbb) whose spouse lost or renounced citizenship status within the past 2 years related to an incident of domestic violence; or
(ccc) who demonstrates a connection between the legal termination of the marriage within the past 2 years and battering or extreme cruelty by the United States citizen spouse;
(bb) who is a person of good moral character;
(cc) who is eligible to be classified as an immediate relative under
(dd) who has resided with the alien's spouse or intended spouse.
(iv) An alien who is the child of a citizen of the United States, or who was a child of a United States citizen parent who within the past 2 years lost or renounced citizenship status related to an incident of domestic violence, and who is a person of good moral character, who is eligible to be classified as an immediate relative under
(v) An alien who—
(I) is the spouse, intended spouse, or child living abroad of a citizen who—
(aa) is an employee of the United States Government;
(bb) is a member of the uniformed services (as defined in
(cc) has subjected the alien or the alien's child to battery or extreme cruelty in the United States; and
(II) is eligible to file a petition under clause (iii) or (iv),
shall file such petition with the Attorney General under the procedures that apply to self-petitioners under clause (iii) or (iv), as applicable.
(vi) For the purposes of any petition filed under clause (iii) or (iv), the denaturalization, loss or renunciation of citizenship, death of the abuser, divorce, or changes to the abuser's citizenship status after filing of the petition shall not adversely affect the approval of the petition, and for approved petitions shall not preclude the classification of the eligible self-petitioning spouse or child as an immediate relative or affect the alien's ability to adjust status under subsections (a) and (c) of
(B)(i) Any alien lawfully admitted for permanent residence claiming that an alien is entitled to a classification by reason of the relationship described in
(ii)(I) An alien who is described in subclause (II) may file a petition with the Attorney General under this clause for classification of the alien (and any child of the alien) if such a child has not been classified under clause (iii) of
(aa) the marriage or the intent to marry the lawful permanent resident was entered into in good faith by the alien; and
(bb) during the marriage or relationship intended by the alien to be legally a marriage, the alien or a child of the alien has been battered or has been the subject of extreme cruelty perpetrated by the alien's spouse or intended spouse.
(II) For purposes of subclause (I), an alien described in this paragraph is an alien—
(aa)(AA) who is the spouse of a lawful permanent resident of the United States; or
(BB) who believed that he or she had married a lawful permanent resident of the United States and with whom a marriage ceremony was actually performed and who otherwise meets any applicable requirements under this chapter to establish the existence of and bona fides of a marriage, but whose marriage is not legitimate solely because of the bigamy of such lawful permanent resident of the United States; or
(CC) who was a bona fide spouse of a lawful permanent resident within the past 2 years and—
(aaa) whose spouse lost status within the past 2 years due to an incident of domestic violence; or
(bbb) who demonstrates a connection between the legal termination of the marriage within the past 2 years and battering or extreme cruelty by the lawful permanent resident spouse;
(bb) who is a person of good moral character;
(cc) who is eligible to be classified as a spouse of an alien lawfully admitted for permanent residence under
(dd) who has resided with the alien's spouse or intended spouse.
(iii) An alien who is the child of an alien lawfully admitted for permanent residence, or who was the child of a lawful permanent resident who within the past 2 years lost lawful permanent resident status due to an incident of domestic violence, and who is a person of good moral character, who is eligible for classification under
(iv) An alien who—
(I) is the spouse, intended spouse, or child living abroad of a lawful permanent resident who—
(aa) is an employee of the United States Government;
(bb) is a member of the uniformed services (as defined in
(cc) has subjected the alien or the alien's child to battery or extreme cruelty in the United States; and
(II) is eligible to file a petition under clause (ii) or (iii),
shall file such petition with the Attorney General under the procedures that apply to self-petitioners under clause (ii) or (iii), as applicable.
(v)(I) For the purposes of any petition filed or approved under clause (ii) or (iii), divorce, or the loss of lawful permanent resident status by a spouse or parent after the filing of a petition under that clause shall not adversely affect approval of the petition, and, for an approved petition, shall not affect the alien's ability to adjust status under subsections (a) and (c) of
(II) Upon the lawful permanent resident spouse or parent becoming or establishing the existence of United States citizenship through naturalization, acquisition of citizenship, or other means, any petition filed with the Immigration and Naturalization Service and pending or approved under clause (ii) or (iii) on behalf of an alien who has been battered or subjected to extreme cruelty shall be deemed reclassified as a petition filed under subparagraph (A) even if the acquisition of citizenship occurs after divorce or termination of parental rights.
(C) Notwithstanding
(D)(i)(I) Any child who attains 21 years of age who has filed a petition under clause (iv) of subsection (a)(1)(A) of this section that was filed or approved before the date on which the child attained 21 years of age shall be considered (if the child has not been admitted or approved for lawful permanent residence by the date the child attained 21 years of age) a petitioner for preference status under paragraph (1), (2), or (3) of
(II) Any individual described in subclause (I) is eligible for deferred action and work authorization.
(III) Any derivative child who attains 21 years of age who is included in a petition described in clause (ii) that was filed or approved before the date on which the child attained 21 years of age shall be considered (if the child has not been admitted or approved for lawful permanent residence by the date the child attained 21 years of age) a petitioner for preference status under paragraph (1), (2), or (3) of
(IV) Any individual described in subclause (III) and any derivative child of a petition described in clause (ii) is eligible for deferred action and work authorization.
(ii) The petition referred to in clause (i)(III) is a petition filed by an alien under subparagraph (A)(iii), (A)(iv), (B)(ii) or (B)(iii) in which the child is included as a derivative beneficiary.
(iii) Nothing in the amendments made by the Child Status Protection Act shall be construed to limit or deny any right or benefit provided under this subparagraph.
(E) Any alien desiring to be classified under
(F) Any employer desiring and intending to employ within the United States an alien entitled to classification under
(G)(i) Any alien (other than a special immigrant under
(ii) Aliens claiming status as a special immigrant under
(H) Any alien desiring to be classified under
(I)(i) Any alien desiring to be provided an immigrant visa under
(ii)(I) The Secretary of State shall designate a period for the filing of petitions with respect to visas which may be issued under
(II) Aliens who qualify, through random selection, for a visa under
(III) The Secretary of State shall prescribe such regulations as may be necessary to carry out this clause.
(iii) A petition under this subparagraph shall be in such form as the Secretary of State may by regulation prescribe and shall contain such information and be supported by such documentary evidence as the Secretary of State may require.
(J) In acting on petitions filed under clause (iii) or (iv) of subparagraph (A) or clause (ii) or (iii) of subparagraph (B), or in making determinations under subparagraphs (C) and (D), the Attorney General shall consider any credible evidence relevant to the petition. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.
(2)(A) The Attorney General may not approve a spousal second preference petition for the classification of the spouse of an alien if the alien, by virtue of a prior marriage, has been accorded the status of an alien lawfully admitted for permanent residence as the spouse of a citizen of the United States or as the spouse of an alien lawfully admitted for permanent residence, unless—
(i) a period of 5 years has elapsed after the date the alien acquired the status of an alien lawfully admitted for permanent residence, or
(ii) the alien establishes to the satisfaction of the Attorney General by clear and convincing evidence that the prior marriage (on the basis of which the alien obtained the status of an alien lawfully admitted for permanent residence) was not entered into for the purpose of evading any provision of the immigration laws.
In this subparagraph, the term "spousal second preference petition" refers to a petition, seeking preference status under
(B) Subparagraph (A) shall not apply to a petition filed for the classification of the spouse of an alien if the prior marriage of the alien was terminated by the death of his or her spouse.
(b) Investigation; consultation; approval; authorization to grant preference status
After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under
(c) Limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriages entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud
Notwithstanding the provisions of subsection (b) of this section no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.
(d) Recommendation of valid home-study
Notwithstanding the provisions of subsections (a) and (b) of this section no petition may be approved on behalf of a child defined in
(e) Subsequent finding of non-entitlement to preference classification
Nothing in this section shall be construed to entitle an immigrant, in behalf of whom a petition under this section is approved, to be admitted 1 the United States as an immigrant under subsection (a), (b), or (c) of
(f) Preferential treatment for children fathered by United States citizens and born in Korea, Vietnam, Laos, Kampuchea, or Thailand after 1950 and before October 22, 1982
(1) Any alien claiming to be an alien described in paragraph (2)(A) of this subsection (or any person on behalf of such an alien) may file a petition with the Attorney General for classification under
(2) The Attorney General may approve a petition for an alien under paragraph (1) if—
(A) he has reason to believe that the alien (i) was born in Korea, Vietnam, Laos, Kampuchea, or Thailand after 1950 and before October 22, 1982, and (ii) was fathered by a United States citizen;
(B) he has received an acceptable guarantee of legal custody and financial responsibility described in paragraph (4); and
(C) in the case of an alien under eighteen years of age, (i) the alien's placement with a sponsor in the United States has been arranged by an appropriate public, private, or State child welfare agency licensed in the United States and actively involved in the intercountry placement of children and (ii) the alien's mother or guardian has in writing irrevocably released the alien for emigration.
(3) In considering petitions filed under paragraph (1), the Attorney General shall—
(A) consult with appropriate governmental officials and officials of private voluntary organizations in the country of the alien's birth in order to make the determinations described in subparagraphs (A) and (C)(ii) of paragraph (2); and
(B) consider the physical appearance of the alien and any evidence provided by the petitioner, including birth and baptismal certificates, local civil records, photographs of, and letters or proof of financial support from, a putative father who is a citizen of the United States, and the testimony of witnesses, to the extent it is relevant or probative.
(4)(A) A guarantee of legal custody and financial responsibility for an alien described in paragraph (2) must—
(i) be signed in the presence of an immigration officer or consular officer by an individual (hereinafter in this paragraph referred to as the "sponsor") who is twenty-one years of age or older, is of good moral character, and is a citizen of the United States or alien lawfully admitted for permanent residence, and
(ii) provide that the sponsor agrees (I) in the case of an alien under eighteen years of age, to assume legal custody for the alien after the alien's departure to the United States and until the alien becomes eighteen years of age, in accordance with the laws of the State where the alien and the sponsor will reside, and (II) to furnish, during the five-year period beginning on the date of the alien's acquiring the status of an alien lawfully admitted for permanent residence, or during the period beginning on the date of the alien's acquiring the status of an alien lawfully admitted for permanent residence and ending on the date on which the alien becomes twenty-one years of age, whichever period is longer, such financial support as is necessary to maintain the family in the United States of which the alien is a member at a level equal to at least 125 per centum of the current official poverty line (as established by the Director of the Office of Management and Budget, under
(B) A guarantee of legal custody and financial responsibility described in subparagraph (A) may be enforced with respect to an alien against his sponsor in a civil suit brought by the Attorney General in the United States district court for the district in which the sponsor resides, except that a sponsor or his estate shall not be liable under such a guarantee if the sponsor dies or is adjudicated a bankrupt under title 11.
(g) Restriction on petitions based on marriages entered while in exclusion or deportation proceedings
Notwithstanding subsection (a) of this section, except as provided in
(h) Survival of rights to petition
The legal termination of a marriage may not be the sole basis for revocation under
(i) Professional athletes
(1) In general
A petition under subsection (a)(4)(D) 2 of this section for classification of a professional athlete shall remain valid for the athlete after the athlete changes employers, if the new employer is a team in the same sport as the team which was the employer who filed the petition.
(2) "Professional athlete" defined
For purposes of paragraph (1), the term "professional athlete" means an individual who is employed as an athlete by—
(A) a team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or
(B) any minor league team that is affiliated with such an association.
(j) Job flexibility for long delayed applicants for adjustment of status to permanent residence
A petition under subsection (a)(1)(D) of this section for an individual whose application for adjustment of status pursuant to
(k) Procedures for unmarried sons and daughters of citizens
(1) In general
Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant under
(2) Exception
Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.
(3) Priority date
Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
(4) Clarification
This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.
(June 27, 1952, ch. 477, title II, ch. 1, §204,
Amendment of Subsection (d)
(2) Notwithstanding the provisions of subsections (a) and (b) of this section, no petition may be approved on behalf of a child defined in
References in Text
The Child Status Protection Act, referred to in subsec. (a)(1)(D)(iii), is
Amendments
2002—Subsec. (a)(1)(D)(iii).
Subsec. (k).
2000—Subsec. (a)(1)(A)(iii).
"(I) the alien is residing in the United States, the marriage between the alien and the spouse was entered into in good faith by the alien, and during the marriage the alien or a child of the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien's spouse; and
"(II) the alien is a person whose removal, in the opinion of the Attorney General, would result in extreme hardship to the alien or a child of the alien."
Subsec. (a)(1)(A)(iv).
"(I) the alien is residing in the United States and during the period of residence with the citizen parent the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien's citizen parent; and
"(II) the alien is a person whose removal, in the opinion of the Attorney General, would result in extreme hardship to the alien."
Subsec. (a)(1)(A)(v).
Subsec. (a)(1)(A)(vi).
Subsec. (a)(1)(B)(ii).
Subsec. (a)(1)(B)(iii).
"(I) the alien is residing in the United States and during the period of residence with the permanent resident parent the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien's permanent resident parent; and
"(II) the alien is a person whose removal, in the opinion of the Attorney General, would result in extreme hardship to the alien."
Subsec. (a)(1)(B)(iv).
Subsec. (a)(1)(B)(v).
Subsec. (a)(1)(C) to (I).
Subsec. (a)(1)(J).
Subsec. (h).
Subsec. (j).
1996—Subsec. (a)(1)(A)(iii)(II), (iv)(II), (B)(iii)(II).
Subsec. (e).
Subsec. (i).
1994—Subsec. (a)(1).
Subsec. (a)(1)(A).
Subsec. (a)(2).
Subsec. (h).
1991—Subsec. (a)(1)(A).
Subsec. (a)(1)(F).
Subsec. (a)(1)(G)(iii).
Subsec. (e).
Subsec. (f)(4)(A)(ii)(II).
Subsec. (g).
1990—Subsec. (a)(1).
Subsec. (b).
Subsec. (e).
Subsec. (f).
Subsec. (f)(1).
Subsec. (g).
Subsec. (h).
1988—Subsec. (c).
Subsec. (g)(3)(A).
1986—Subsec. (a).
Subsec. (c).
Subsec. (h).
1982—Subsec. (g).
1981—Subsec. (a).
Subsec. (d).
Subsecs. (e), (f).
1980—Subsec. (d).
1978—Subsec. (c).
Subsecs. (e), (f).
1976—Subsec. (f).
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1962—Subsec. (c).
Effective Date of 2002 Amendment
Amendment by
Effective Date of 2000 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by section 308(e)(1)(A), (f)(2)(A) of
Effective Date of 1994 Amendments
Amendment by
Amendment by
Effective Date of 1991 Amendment
Amendment by sections 302(e)(4), (5) and 308(b) of
Effective Date of 1990 Amendment
Amendment by section 162(b) of
Section 702(c) of
Effective Date of 1986 Amendment
Section 4(b) of
Section 5(c) of
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Alien Sheepherders
Act Sept. 3, 1954, ch. 1254, §§1–3,
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by "to".
2 So in original. Probably should be subsection "(a)(1)(D)".
§1155. Revocation of approval of petitions; notice of revocation; effective date
The Attorney General may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under
(June 27, 1952, ch. 477, title II, ch. 1, §205,
Amendments
1996—
1965—
1961—Subsec. (b).
Subsec. (c).
1959—Subsec. (b).
Subsec. (c).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1156. Unused immigrant visas
If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.
(June 27, 1952, ch. 477, title II, ch. 1, §206,
Amendments
1996—
1965—
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
§1157. Annual admission of refugees and admission of emergency situation refugees
(a) Maximum number of admissions; increases for humanitarian concerns; allocations
(1) Except as provided in subsection (b) of this section, the number of refugees who may be admitted under this section in fiscal year 1980, 1981, or 1982, may not exceed fifty thousand unless the President determines, before the beginning of the fiscal year and after appropriate consultation (as defined in subsection (e) of this section), that admission of a specific number of refugees in excess of such number is justified by humanitarian concerns or is otherwise in the national interest.
(2) Except as provided in subsection (b) of this section, the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest.
(3) Admissions under this subsection shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after appropriate consultation.
(4) In the determination made under this subsection for each fiscal year (beginning with fiscal year 1992), the President shall enumerate, with the respective number of refugees so determined, the number of aliens who were granted asylum in the previous year.
(5) For any fiscal year, not more than a total of 1,000 refugees may be admitted under this subsection or granted asylum under
(b) Determinations by President respecting number of admissions for humanitarian concerns
If the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under subsection (a) of this section, the President may fix a number of refugees to be admitted to the United States during the succeeding period (not to exceed twelve months) in response to the emergency refugee situation and such admissions shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after the appropriate consultation provided under this subsection.
(c) Admission by Attorney General of refugees; criteria; admission status of spouse or child; applicability of other statutory requirements; termination of refugee status of alien, spouse or child
(1) Subject to the numerical limitations established pursuant to subsections (a) and (b) of this section, the Attorney General may, in the Attorney General's discretion and pursuant to such regulations as the Attorney General may prescribe, admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible (except as otherwise provided under paragraph (3)) as an immigrant under this chapter.
(2)(A) A spouse or child (as defined in
(B) An unmarried alien who seeks to accompany, or follow to join, a parent granted admission as a refugee under this subsection, and who was under 21 years of age on the date on which such parent applied for refugee status under this section, shall continue to be classified as a child for purposes of this paragraph, if the alien attained 21 years of age after such application was filed but while it was pending.
(3) The provisions of paragraphs (4), (5), and (7)(A) of
(4) The refugee status of any alien (and of the spouse or child of the alien) may be terminated by the Attorney General pursuant to such regulations as the Attorney General may prescribe if the Attorney General determines that the alien was not in fact a refugee within the meaning of
(d) Oversight reporting and consultation requirements
(1) Before the start of each fiscal year the President shall report to the Committees on the Judiciary of the House of Representatives and of the Senate regarding the foreseeable number of refugees who will be in need of resettlement during the fiscal year and the anticipated allocation of refugee admissions during the fiscal year. The President shall provide for periodic discussions between designated representatives of the President and members of such committees regarding changes in the worldwide refugee situation, the progress of refugee admissions, and the possible need for adjustments in the allocation of admissions among refugees.
(2) As soon as possible after representatives of the President initiate appropriate consultation with respect to the number of refugee admissions under subsection (a) of this section or with respect to the admission of refugees in response to an emergency refugee situation under subsection (b) of this section, the Committees on the Judiciary of the House of Representatives and of the Senate shall cause to have printed in the Congressional Record the substance of such consultation.
(3)(A) After the President initiates appropriate consultation prior to making a determination under subsection (a) of this section, a hearing to review the proposed determination shall be held unless public disclosure of the details of the proposal would jeopardize the lives or safety of individuals.
(B) After the President initiates appropriate consultation prior to making a determination, under subsection (b) of this section, that the number of refugee admissions should be increased because of an unforeseen emergency refugee situation, to the extent that time and the nature of the emergency refugee situation permit, a hearing to review the proposal to increase refugee admissions shall be held unless public disclosure of the details of the proposal would jeopardize the lives or safety of individuals.
(e) "Appropriate consultation" defined
For purposes of this section, the term "appropriate consultation" means, with respect to the admission of refugees and allocation of refugee admissions, discussions in person by designated Cabinet-level representatives of the President with members of the Committees on the Judiciary of the Senate and of the House of Representatives to review the refugee situation or emergency refugee situation, to project the extent of possible participation of the United States therein, to discuss the reasons for believing that the proposed admission of refugees is justified by humanitarian concerns or grave humanitarian concerns or is otherwise in the national interest, and to provide such members with the following information:
(1) A description of the nature of the refugee situation.
(2) A description of the number and allocation of the refugees to be admitted and an analysis of conditions within the countries from which they came.
(3) A description of the proposed plans for their movement and resettlement and the estimated cost of their movement and resettlement.
(4) An analysis of the anticipated social, economic, and demographic impact of their admission to the United States.
(5) A description of the extent to which other countries will admit and assist in the resettlement of such refugees.
(6) An analysis of the impact of the participation of the United States in the resettlement of such refugees on the foreign policy interests of the United States.
(7) Such additional information as may be appropriate or requested by such members.
To the extent possible, information described in this subsection shall be provided at least two weeks in advance of discussions in person by designated representatives of the President with such members.
(f) Training
(1) The Attorney General, in consultation with the Secretary of State, shall provide all United States officials adjudicating refugee cases under this section with the same training as that provided to officers adjudicating asylum cases under
(2) Such training shall include country-specific conditions, instruction on the internationally recognized right to freedom of religion, instruction on methods of religious persecution practiced in foreign countries, and applicable distinctions within a country between the nature of and treatment of various religious practices and believers.
(June 27, 1952, ch. 477, title II, ch. 1, §207, as added
Prior Provisions
A prior section 1157, act June 27, 1952, ch. 477, title II, ch. 1, §207,
Amendments
2002—Subsec. (c)(2).
1998—Subsec. (f).
1996—Subsec. (a)(5).
1991—Subsec. (c)(3).
1990—Subsec. (a)(4).
Subsec. (c)(3).
1988—Subsec. (c)(1).
Effective Date of 2002 Amendment
Amendment by
Effective Date of 1991 Amendment
Section 307(l) of
Effective Date of 1990 Amendment
Amendment by section 104(b) of
Amendment by section 603(a)(4) of
Effective Date
Section (with the exception of subsec. (c) which is effective Apr. 1, 1980) effective, except as otherwise provided, Mar. 17, 1980, and applicable to fiscal years beginning with the fiscal year beginning Oct. 1, 1979, see section 204 of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Delegation of Functions
For delegation of Congressional reporting functions of President under subsec. (d) of this section, see section 1 of Ex. Ord. No. 13313, July 31, 2003, 68 F.R. 46073, set out as a note under
Bring Them Home Alive Program
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Bring Them Home Alive Act of 2000'.
"SEC. 2. AMERICAN VIETNAM WAR POW/MIA ASYLUM PROGRAM.
"(a)
"(b)
"(1) any alien who—
"(A) is a national of Vietnam, Cambodia, Laos, China, or any of the independent states of the former Soviet Union; and
"(B) personally delivers into the custody of the United States Government a living American Vietnam War POW/MIA; and
"(2) any parent, spouse, or child of an alien described in paragraph (1).
"(c)
"(1)
"(A)
"(i) who is a member of a uniformed service (within the meaning of
"(ii) who is an employee (as defined in
"(B)
"(2)
"(A) was performing service in Vietnam; or
"(B) was performing service in Southeast Asia in direct support of military operations in Vietnam.
"(3)
"SEC. 3. AMERICAN KOREAN WAR POW/MIA ASYLUM PROGRAM.
"(a)
"(b)
"(1) any alien—
"(A) who is a national of North Korea, China, or any of the independent states of the former Soviet Union; and
"(B) who personally delivers into the custody of the United States Government a living American Korean War POW/MIA; and
"(2) any parent, spouse, or child of an alien described in paragraph (1).
"(c)
"(1)
"(A)
"(i) who is a member of a uniformed service (within the meaning of
"(ii) who is an employee (as defined in
"(B)
"(2)
"(3)
"(A) was performing service in the Korean peninsula; or
"(B) was performing service in Asia in direct support of military operations in the Korean peninsula.
"SEC. 3A. AMERICAN PERSIAN GULF WAR POW/MIA ASYLUM PROGRAM.
"(a)
"(b)
"(1)
"(A) any alien who—
"(i) is a national of Iraq or a nation of the Greater Middle East Region (as determined by the Attorney General in consultation with the Secretary of State); and
"(ii) personally delivers into the custody of the United States Government a living American Persian Gulf War POW/MIA; and
"(B) any parent, spouse, or child of an alien described in subparagraph (A).
"(2)
"(c)
"(1)
"(A)
"(i) who is a member of a uniformed service (within the meaning of
"(ii) who is an employee (as defined in
"(B)
"(2)
"(A) was performing service in Kuwait, Iraq, or another nation of the Greater Middle East Region; or
"(B) was performing service in the Greater Middle East Region in direct support of military operations in Kuwait or Iraq.
"(3)
"SEC. 4. BROADCASTING INFORMATION ON THE 'BRING THEM HOME ALIVE' PROGRAM.
"(a)
"(1)
"(2)
"(A) Vietnam, Cambodia, Laos, China, and North Korea;
"(B) Russia and the other independent states of the former Soviet Union; and
"(C) Iraq, Kuwait, or any other country of the Greater Middle East Region (as determined by the International Broadcasting Bureau in consultation with the Attorney General and the Secretary of State).
"(b)
"(1) at least 20 hours of the programming described in subsection (a)(1) during the 30-day period that begins 15 days after the date of enactment of this Act [Nov. 9, 2000]; and
"(2) at least 10 hours of the programming described in subsection (a)(1) in each calendar quarter during the period beginning with the first calendar quarter that begins after the date of enactment of this Act and ending five years after the date of enactment of this Act.
"(c)
"(d)
"(e)
"SEC. 5. INDEPENDENT STATES OF THE FORMER SOVIET UNION DEFINED.
"In this Act, the term 'independent states of the former Soviet Union' has the meaning given the term in section 3 of the FREEDOM Support Act (
Gender-Related Persecution Task Force
"(a)
"(b)
Establishing Categories of Aliens for Purposes of Refugee Determinations
"(a)
"(b)
"(1) For purposes of subsection (a), the Attorney General, in consultation with the Secretary of State and the Coordinator for Refugee Affairs, shall establish—
"(A) one or more categories of aliens who are or were nationals and residents of an independent state of the former Soviet Union or of Estonia, Latvia, or Lithuania and who share common characteristics that identify them as targets of persecution in that state on account of race, religion, nationality, membership in a particular social group, or political opinion, and
"(B) one or more categories of aliens who are or were nationals and residents of Vietnam, Laos, or Cambodia and who share common characteristics that identify them as targets of persecution in such respective foreign state on such an account.
"(2)(A) Aliens who are (or were) nationals and residents of an independent state of the former Soviet Union or of Estonia, Latvia, or Lithuania and who are Jews or Evangelical Christians shall be deemed a category of alien established under paragraph (1)(A).
"(B) Aliens who are (or were) nationals of an independent state of the former Soviet Union or of Estonia, Latvia, or Lithuania and who are current members of, and demonstrate public, active, and continuous participation (or attempted participation) in the religious activities of, the Ukrainian Catholic Church or the Ukrainian Orthodox Church, shall be deemed a category of alien established under paragraph (1)(A).
"(C) Aliens who are (or were) nationals and residents of Vietnam, Laos, or Cambodia and who are members of categories of individuals determined, by the Attorney General in accordance with 'Immigration and Naturalization Service Worldwide Guidelines for Overseas Refugee Processing' (issued by the Immigration and Naturalization Service in August 1983) shall be deemed a category of alien established under paragraph (1)(B).
"(3) Within the number of admissions of refugees allocated for for [sic] each of fiscal years 1990, 1991, and 1992 for refugees who are nationals of the Soviet Union under section 207(a)(3) of the Immigration and Nationality Act [
"(c)
"(d)
"(e)
"(1) Subsections (a) and (b) shall take effect on the date of the enactment of this Act [Nov. 21, 1989] and shall only apply to applications for refugee status submitted before October 1, 2003.
"(2) Subsection (c) shall apply to decisions made after the date of the enactment of this Act and before October 1, 2003.
"(3) Subsection (d) shall take effect on the date of the enactment of this Act and shall only apply to reapplications for refugee status submitted before October 1, 2003."
[
[Except as otherwise provided, Secretary of State to have and exercise any authority vested by law in any official or office of Department of State and references to such officials or offices deemed to refer to Secretary of State or Department of State, as appropriate, see
El Salvadoran Refugees
Time for Determinations by President for Fiscal Year 1980
Section 204(d)(1) of
Presidential Determination Concerning Admission and Adjustment of Status of Refugees
Determinations by the President pursuant to this section concerning the admission and adjustment of status of refugees for particular fiscal years were contained in the following Presidential Determinations:
Presidential Determination No. 2004–06, Oct. 21, 2003, 68 F.R. 63979.
Presidential Determination No. 03–02, Oct. 16, 2002, 67 F.R. 65469.
Presidential Determination No. 02–04, Nov. 21, 2001, 66 F.R. 63487.
Presidential Determination No. 2000–32, Sept. 29, 2000, 65 F.R. 59697.
Presidential Determination No. 99–45, Sept. 30, 1999, 64 F.R. 54505.
Presidential Determination No. 99–33, Aug. 12, 1999, 64 F.R. 47341.
Presidential Determination No. 98–39, Sept. 30, 1998, 63 F.R. 55001.
Presidential Determination No. 97–37, Sept. 30, 1997, 62 F.R. 53219.
Presidential Determination No. 96–59, Sept. 30, 1996, 61 F.R. 56869.
Presidential Determination No. 95–48, Sept. 29, 1995, 60 F.R. 53091.
Presidential Determination No. 95–1, Oct. 1, 1994, 59 F.R. 52393.
Presidential Determination No. 94–1, Oct. 1, 1993, 58 F.R. 52213.
Presidential Determination No. 93–1, Oct. 2, 1992, 57 F.R. 47253.
Presidential Determination No. 92–2, Oct. 9, 1991, 56 F.R. 51633.
Presidential Determination No. 91–3, Oct. 12, 1990, 55 F.R. 41979.
Presidential Determination No. 90–2, Oct. 6, 1989, 54 F.R. 43035.
Presidential Determination No. 89–15, June 19, 1989, 54 F.R. 31493.
Presidential Determination No. 89–2, Oct. 5, 1988, 53 F.R. 45249.
Presidential Determination No. 88–16, May 20, 1988, 53 F.R. 21405.
Presidential Determination No. 88–01, Oct. 5, 1987, 52 F.R. 42073.
Presidential Determination No. 87–1, Oct. 17, 1986, 51 F.R. 39637.
Presidential Determination No. 83–2, Oct. 11, 1982, 47 F.R. 46483.
Presidential Determination No. 82–1, Oct. 10, 1981, 46 F.R. 55233.
Presidential Determination No. 80–28, Sept. 30, 1980, 45 F.R. 68365.
Ex. Ord. No. 12208. Consultations on the Admission of Refugees
Ex. Ord. No. 12208, Apr. 15, 1980, 45 F.R. 25789, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 13286, §49, Feb. 28, 2003, 68 F.R. 10628, provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, including the Refugee Act of 1980 (
1–101. Exclusive of the functions otherwise delegated, or reserved to the President, by this Order, there are hereby delegated to the Secretary of State and the Secretary of Homeland Security, or either of them, the functions of initiating and carrying out appropriate consultations with members of the Committees on the Judiciary of the Senate and of the House of Representatives for purposes of Sections 101(a)(42)(B) and 207(a), (b), (d), and (e) of the Immigration and Nationality Act, as amended (
1–102. There are reserved to the President the following functions under the Immigration and Nationality Act, as amended [
(a) To specify special circumstances for purposes of qualifying persons as refugees under Section 101(a)(42)(B) [
(b) To make determinations under Sections 207(a)(1), 207(a)(2), 207(a)(3) and 207(b) [
(c) To fix the number of refugees to be admitted under Section 207(b).
1–103. Except to the extent inconsistent with this Order, all actions previously taken pursuant to any function delegated or assigned by this Order shall be deemed to have been taken and authorized by this Order.
Section Referred to in Other Sections
This section is referred to in
§1158. Asylum
(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable,
(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.
(B) Time limit
Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States.
(C) Previous asylum applications
Subject to subparagraph (D), paragraph (1) shall not apply to an alien if the alien has previously applied for asylum and had such application denied.
(D) Changed circumstances
An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).
(3) Limitation on judicial review
No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).
(b) Conditions for granting asylum
(1) In general
The Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Attorney General under this section if the Attorney General determines that such alien is a refugee within the meaning of
(2) Exceptions
(A) In general
Paragraph (1) shall not apply to an alien if the Attorney General determines that—
(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
(ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;
(iii) there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;
(iv) there are reasonable grounds for regarding the alien as a danger to the security of the United States;
(v) the alien is inadmissible under subclause (I), (II), (III), (IV), or (VI) of
(vi) the alien was firmly resettled in another country prior to arriving in the United States.
(B) Special rules
(i) Conviction of aggravated felony
For purposes of clause (ii) of subparagraph (A), an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.
(ii) Offenses
The Attorney General may designate by regulation offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).
(C) Additional limitations
The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1).
(D) No judicial review
There shall be no judicial review of a determination of the Attorney General under subparagraph (A)(v).
(3) Treatment of spouse and children
(A) In general
A spouse or child (as defined in
(B) Continued classification of certain aliens as children
An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section, shall continue to be classified as a child for purposes of this paragraph and
(c) Asylum status
(1) In general
In the case of an alien granted asylum under subsection (b) of this section, the Attorney General—
(A) shall not remove or return the alien to the alien's country of nationality or, in the case of a person having no nationality, the country of the alien's last habitual residence;
(B) shall authorize the alien to engage in employment in the United States and provide the alien with appropriate endorsement of that authorization; and
(C) may allow the alien to travel abroad with the prior consent of the Attorney General.
(2) Termination of asylum
Asylum granted under subsection (b) of this section does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that—
(A) the alien no longer meets the conditions described in subsection (b)(1) of this section owing to a fundamental change in circumstances;
(B) the alien meets a condition described in subsection (b)(2) of this section;
(C) the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien is eligible to receive asylum or equivalent temporary protection;
(D) the alien has voluntarily availed himself or herself of the protection of the alien's country of nationality or, in the case of an alien having no nationality, the alien's country of last habitual residence, by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country; or
(E) the alien has acquired a new nationality and enjoys the protection of the country of his or her new nationality.
(3) Removal when asylum is terminated
An alien described in paragraph (2) is subject to any applicable grounds of inadmissibility or deportability under section 1 1182(a) and 1227(a) of this title, and the alien's removal or return shall be directed by the Attorney General in accordance with
(d) Asylum procedure
(1) Applications
The Attorney General shall establish a procedure for the consideration of asylum applications filed under subsection (a) of this section. The Attorney General may require applicants to submit fingerprints and a photograph at such time and in such manner to be determined by regulation by the Attorney General.
(2) Employment
An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General. An applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.
(3) Fees
The Attorney General may impose fees for the consideration of an application for asylum, for employment authorization under this section, and for adjustment of status under
(4) Notice of privilege of counsel and consequences of frivolous application
At the time of filing an application for asylum, the Attorney General shall—
(A) advise the alien of the privilege of being represented by counsel and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum; and
(B) provide the alien a list of persons (updated not less often than quarterly) who have indicated their availability to represent aliens in asylum proceedings on a pro bono basis.
(5) Consideration of asylum applications
(A) Procedures
The procedure established under paragraph (1) shall provide that—
(i) asylum cannot be granted until the identity of the applicant has been checked against all appropriate records or databases maintained by the Attorney General and by the Secretary of State, including the Automated Visa Lookout System, to determine any grounds on which the alien may be inadmissible to or deportable from the United States, or ineligible to apply for or be granted asylum;
(ii) in the absence of exceptional circumstances, the initial interview or hearing on the asylum application shall commence not later than 45 days after the date an application is filed;
(iii) in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed;
(iv) any administrative appeal shall be filed within 30 days of a decision granting or denying asylum, or within 30 days of the completion of removal proceedings before an immigration judge under
(v) in the case of an applicant for asylum who fails without prior authorization or in the absence of exceptional circumstances to appear for an interview or hearing, including a hearing under
(B) Additional regulatory conditions
The Attorney General may provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with this chapter.
(6) Frivolous applications
If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application.
(7) No private right of action
Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
(June 27, 1952, ch. 477, title II, ch. 1, §208, as added
Amendments
2002—Subsec. (b)(3).
2001—Subsec. (b)(2)(A)(v).
1996—
Subsec. (a).
1994—Subsec. (e).
1990—Subsec. (d).
Effective Date of 2002 Amendment
Amendment by
Effective Date of 2001 Amendment
Amendment by
Effective Date of 1996 Amendments
Section 604(c) of div. C of
Section 421(b) of
Effective Date of 1990 Amendment
Section 515(b) of
"(1) The amendment made by subsection (a)(1) [amending this section] shall apply to convictions entered before, on, or after the date of the enactment of this Act [Nov. 29, 1990] and to applications for asylum made on or after such date.
"(2) The amendment made by subsection (a)(2) [amending
Effective Date
Section effective Mar. 17, 1980, and applicable to fiscal years beginning with the fiscal year beginning Oct. 1, 1979, see section 204 of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Expeditious Removal for Denied Asylum Applicants
Section 130005 of
"(a)
"(b)
"(c)
"(1) $64,000,000 for fiscal year 1995;
"(2) $90,000,000 for fiscal year 1996;
"(3) $93,000,000 for fiscal year 1997; and
"(4) $91,000,000 for fiscal year 1998."
Time for Establishment of Asylum Procedure by Attorney General
Section 204(d)(2) of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "sections".
§1159. Adjustment of status of refugees
(a) Criteria and procedures applicable for admission as immigrant; effect of adjustment
(1) Any alien who has been admitted to the United States under
(A) whose admission has not been terminated by the Attorney General pursuant to such regulations as the Attorney General may prescribe,
(B) who has been physically present in the United States for at least one year, and
(C) who has not acquired permanent resident status,
shall, at the end of such year period, return or be returned to the custody of the Service for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of
(2) Any alien who is found upon inspection and examination by an immigration officer pursuant to paragraph (1) or after a hearing before an immigration judge to be admissible (except as otherwise provided under subsection (c) of this section) as an immigrant under this chapter at the time of the alien's inspection and examination shall, notwithstanding any numerical limitation specified in this chapter, be regarded as lawfully admitted to the United States for permanent residence as of the date of such alien's arrival into the United States.
(b) Maximum number of adjustments; recordkeeping
Not more than 10,000 of the refugee admissions authorized under
(1) applies for such adjustment,
(2) has been physically present in the United States for at least one year after being granted asylum,
(3) continues to be a refugee within the meaning of
(4) is not firmly resettled in any foreign country, and
(5) is admissible (except as otherwise provided under subsection (c) of this section) as an immigrant under this chapter at the time of examination for adjustment of such alien.
Upon approval of an application under this subsection, the Attorney General shall establish a record of the alien's admission for lawful permanent residence as of the date one year before the date of the approval of the application.
(c) Applicability of other Federal statutory requirements
The provisions of paragraphs (4), (5), and (7)(A) of
(June 27, 1952, ch. 477, title II, ch. 1, §209, as added
Amendments
1996—Subsec. (a)(1).
Subsec. (a)(2).
1991—Subsec. (c).
1990—Subsec. (b).
Subsec. (c).
Effective Date of 1996 Amendment
Amendment by section 308(g)(3)(A), (4)(A) of
Amendment by section 371(b)(2) of
Effective Date of 1991 Amendment
Section 307(l) of
Effective Date of 1990 Amendment
Section 104(a)(2) of
Amendment by section 603(a)(4) of
Effective Date
Section effective, except as otherwise provided, Mar. 17, 1980, and applicable to fiscal years beginning with the fiscal year beginning Oct. 1, 1979, see section 204 of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Waiver of Numerical Limitation for Certain Current Asylees; Adjustment of Certain Former Asylees
Section 104(c), (d) of
"(c)
"(d)
"(1)
"(A) who was granted asylum before the date of the enactment of this Act [Nov. 29, 1990] (regardless of whether or not such asylum has been terminated under section 208 of the Immigration and Nationality Act [
"(B) who is no longer a refugee because of a change in circumstances in a foreign state, and
"(C) who was (or would be) qualified for adjustment of status under section 209(b) of the Immigration and Nationality Act as of the date of the enactment of this Act but for paragraphs (2) and (3) thereof and but for any numerical limitation under such section.
"(2)
[Section 104(c), (d) of
Section Referred to in Other Sections
This section is referred to in
§1160. Special agricultural workers
(a) Lawful residence
(1) In general
The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the Attorney General determines that the alien meets the following requirements:
(A) Application period
The alien must apply for such adjustment during the 18-month period beginning on the first day of the seventh month that begins after November 6, 1986.
(B) Performance of seasonal agricultural services and residence in the United States
The alien must establish that he has—
(i) resided in the United States, and
(ii) performed seasonal agricultural services in the United States for at least 90 man-days,
during the 12-month period ending on May 1, 1986. For purposes of the previous sentence, performance of seasonal agricultural services in the United States for more than one employer on any one day shall be counted as performance of services for only 1 man-day.
(C) Admissible as immigrant
The alien must establish that he is admissible to the United States as an immigrant, except as otherwise provided under subsection (c)(2) of this section.
(2) Adjustment to permanent residence
The Attorney General shall adjust the status of any alien provided lawful temporary resident status under paragraph (1) to that of an alien lawfully admitted for permanent residence on the following date:
(A) Group 1
Subject to the numerical limitation established under subparagraph (C), in the case of an alien who has established, at the time of application for temporary residence under paragraph (1), that the alien performed seasonal agricultural services in the United States for at least 90 man-days during each of the 12-month periods ending on May 1, 1984, 1985, and 1986, the adjustment shall occur on the first day after the end of the one-year period that begins on the later of (I) the date the alien was granted such temporary resident status, or (II) the day after the last day of the application period described in paragraph (1)(A).
(B) Group 2
In the case of aliens to which subparagraph (A) does not apply, the adjustment shall occur on the day after the last day of the two-year period that begins on the later of (I) the date the alien was granted such temporary resident status, or (II) the day after the last day of the application period described in paragraph (1)(A).
(C) Numerical limitation
Subparagraph (A) shall not apply to more than 350,000 aliens. If more than 350,000 aliens meet the requirements of such subparagraph, such subparagraph shall apply to the 350,000 aliens whose applications for adjustment were first filed under paragraph (1) and subparagraph (B) shall apply to the remaining aliens.
(3) Termination of temporary residence
(A) During the period of temporary resident status granted an alien under paragraph (1), the Attorney General may terminate such status only upon a determination under this chapter that the alien is deportable.
(B) Before any alien becomes eligible for adjustment of status under paragraph (2), the Attorney General may deny adjustment to permanent status and provide for termination of the temporary resident status granted such alien under paragraph (1) if—
(i) the Attorney General finds by a preponderance of the evidence that the adjustment to temporary resident status was the result of fraud or willful misrepresentation as set out in
(ii) the alien commits an act that (I) makes the alien inadmissible to the United States as an immigrant, except as provided under subsection (c)(2) of this section, or (II) is convicted of a felony or 3 or more misdemeanors committed in the United States.
(4) Authorized travel and employment during temporary residence
During the period an alien is in lawful temporary resident status granted under this subsection, the alien has the right to travel abroad (including commutation from a residence abroad) and shall be granted authorization to engage in employment in the United States and shall be provided an "employment authorized" endorsement or other appropriate work permit, in the same manner as for aliens lawfully admitted for permanent residence.
(5) In general
Except as otherwise provided in this subsection, an alien who acquires the status of an alien lawfully admitted for temporary residence under paragraph (1), such status not having changed, is considered to be an alien lawfully admitted for permanent residence (as described in
(b) Applications for adjustment of status
(1) To whom may be made
(A) Within the United States
The Attorney General shall provide that applications for adjustment of status under subsection (a) may be filed—
(i) with the Attorney General, or
(ii) with a designated entity (designated under paragraph (2)), but only if the applicant consents to the forwarding of the application to the Attorney General.
(B) Outside the United States
The Attorney General, in cooperation with the Secretary of State, shall provide a procedure whereby an alien may apply for adjustment of status under subsection (a)(1) of this section at an appropriate consular office outside the United States. If the alien otherwise qualifies for such adjustment, the Attorney General shall provide such documentation of authorization to enter the United States and to have the alien's status adjusted upon entry as may be necessary to carry out the provisions of this section.
(2) Designation of entities to receive applications
For purposes of receiving applications under this section, the Attorney General—
(A) shall designate qualified voluntary organizations and other qualified State, local, community, farm labor organizations, and associations of agricultural employers, and
(B) may designate such other persons as the Attorney General determines are qualified and have substantial experience, demonstrated competence, and traditional long-term involvement in the preparation and submittal of applications for adjustment of status under
(3) Proof of eligibility
(A) In general
An alien may establish that he meets the requirement of subsection (a)(1)(B)(ii) of this section through government employment records, records supplied by employers or collective bargaining organizations, and such other reliable documentation as the alien may provide. The Attorney General shall establish special procedures to credit properly work in cases in which an alien was employed under an assumed name.
(B) Documentation of work history
(i) An alien applying for adjustment of status under subsection (a)(1) of this section has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of man-days (as required under subsection (a)(1)(B)(ii) of this section).
(ii) If an employer or farm labor contractor employing such an alien has kept proper and adequate records respecting such employment, the alien's burden of proof under clause (i) may be met by securing timely production of those records under regulations to be promulgated by the Attorney General.
(iii) An alien can meet such burden of proof if the alien establishes that the alien has in fact performed the work described in subsection (a)(1)(B)(ii) of this section by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference. In such a case, the burden then shifts to the Attorney General to disprove the alien's evidence with a showing which negates the reasonableness of the inference to be drawn from the evidence.
(4) Treatment of applications by designated entities
Each designated entity must agree to forward to the Attorney General applications filed with it in accordance with paragraph (1)(A)(ii) but not to forward to the Attorney General applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Attorney General.
(5) Limitation on access to information
Files and records prepared for purposes of this section by designated entities operating under this section are confidential and the Attorney General and the Service shall not have access to such files or records relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to paragraph (6) of this subsection.
(6) Confidentiality of information
(A) In general
Except as provided in this paragraph, neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—
(i) use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application, including a determination under subsection (a)(3)(B) of this section, or for enforcement of paragraph (7);
(ii) make any publication whereby the information furnished by any particular individual can be identified; or
(iii) permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.
(B) Required disclosures
The Attorney General shall provide information furnished under this section, and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, when such information is requested in writing by such entity, or to an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).
(C) Construction
(i) In general
Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Service pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.
(ii) Criminal convictions
Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes.
(D) Crime
Whoever knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be fined not more than $10,000.
(7) Penalties for false statements in applications
(A) Criminal penalty
Whoever—
(i) files an application for adjustment of status under this section and knowingly and willfully falsifies, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, or
(ii) creates or supplies a false writing or document for use in making such an application,
shall be fined in accordance with title 18 or imprisoned not more than five years, or both.
(B) Exclusion
An alien who is convicted of a crime under subparagraph (A) shall be considered to be inadmissible to the United States on the ground described in
(c) Waiver of numerical limitations and certain grounds for exclusion
(1) Numerical limitations do not apply
The numerical limitations of
(2) Waiver of grounds for exclusion
In the determination of an alien's admissibility under subsection (a)(1)(C) of this section—
(A) Grounds of exclusion not applicable
The provisions of paragraphs (5) and (7)(A) of
(B) Waiver of other grounds
(i) In general
Except as provided in clause (ii), the Attorney General may waive any other provision of
(ii) Grounds that may not be waived
The following provisions of
(I) Paragraphs (2)(A) and (2)(B) (relating to criminals).
(II) Paragraph (4) (relating to aliens likely to become public charges).
(III) Paragraph (2)(C) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marihuana.
(IV) Paragraph (3) (relating to security and related grounds), other than subparagraph (E) thereof.
(C) Special rule for determination of public charge
An alien is not ineligible for adjustment of status under this section due to being inadmissible under
(d) Temporary stay of exclusion or deportation and work authorization for certain applicants
(1) Before application period
The Attorney General shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1) of this section and who can establish a nonfrivolous case of eligibility to have his status adjusted under subsection (a) of this section (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien—
(A) may not be excluded or deported, and
(B) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit.
(2) During application period
The Attorney General shall provide that in the case of an alien who presents a nonfrivolous application for adjustment of status under subsection (a) of this section during the application period, and until a final determination on the application has been made in accordance with this section, the alien—
(A) may not be excluded or deported, and
(B) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit.
(3) Use of application fees to offset program costs
No application fees collected by the Service pursuant to this subsection may be used by the Service to offset the costs of the special agricultural worker legalization program until the Service implements the program consistent with the statutory mandate as follows:
(A) During the application period described in subsection (a)(1)(A) of this section the Service may grant temporary admission to the United States, work authorization, and provide an "employment authorized" endorsement or other appropriate work permit to any alien who presents a preliminary application for adjustment of status under subsection (a) of this section at a designated port of entry on the southern land border. An alien who does not enter through a port of entry is subject to deportation and removal as otherwise provided in this chapter.
(B) During the application period described in subsection (a)(1)(A) of this section any alien who has filed an application for adjustment of status within the United States as provided in subsection (b)(1)(A) of this section pursuant to the provision of 8 CFR section 210.1(j) is subject to paragraph (2) of this subsection.
(C) A preliminary application is defined as a fully completed and signed application with fee and photographs which contains specific information concerning the performance of qualifying employment in the United States and the documentary evidence which the applicant intends to submit as proof of such employment. The applicant must be otherwise admissible to the United States and must establish to the satisfaction of the examining officer during an interview that his or her claim to eligibility for special agriculture worker status is credible.
(e) Administrative and judicial review
(1) Administrative and judicial review
There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
(2) Administrative review
(A) Single level of administrative appellate review
The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination.
(B) Standard for review
Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.
(3) Judicial review
(A) Limitation to review of exclusion or deportation
There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under
(B) Standard for judicial review
Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.
(f) Temporary disqualification of newly legalized aliens from receiving aid to families with dependent children
During the five-year period beginning on the date an alien was granted lawful temporary resident status under subsection (a) of this section, and notwithstanding any other provision of law, the alien is not eligible for assistance under a State program funded under part A of title IV of the Social Security Act [
(g) Treatment of special agricultural workers
For all purposes (subject to subsections (a)(5) and (f) of this section) an alien whose status is adjusted under this section to that of an alien lawfully admitted for permanent residence, such status not having changed, shall be considered to be an alien lawfully admitted for permanent residence (within the meaning of
(h) "Seasonal agricultural services" defined
In this section, the term "seasonal agricultural services" means the performance of field work related to planting, cultural practices, cultivating, growing and harvesting of fruits and vegetables of every kind and other perishable commodities, as defined in regulations by the Secretary of Agriculture.
(June 27, 1952, ch. 477, title II, ch. 1, §210, as added
References in Text
The Social Security Act, referred to in subsec. (f), is act Aug. 14, 1935, ch. 531,
Amendments
1996—Subsec. (b)(5).
Subsec. (b)(6).
Subsec. (e)(3)(A).
Subsec. (f).
1994—Subsec. (d)(3).
Subsec. (d)(3)(B).
1991—Subsec. (b)(7)(B).
Subsec. (d)(3).
Subsec. (d)(3)(A).
Subsec. (d)(3)(B).
1990—Subsec. (a)(3)(B)(i).
Subsec. (c)(2)(A).
Subsec. (c)(2)(B)(ii)(I).
Subsec. (c)(2)(B)(ii)(II).
Subsec. (c)(2)(B)(ii)(III).
Subsec. (c)(2)(B)(ii)(IV).
Subsec. (c)(2)(B)(ii)(V).
Subsec. (c)(2)(C).
1989—Subsec. (a)(3).
Subsec. (b)(6)(A).
1988—Subsec. (g).
1987—Subsec. (d)(3).
Effective Date of 1996 Amendments
Amendment by section 308(g)(2)(B) of
Section 384(d)(2) of div. C of
Amendment by
Effective Date of 1994 Amendment
Section 219(z) of
Amendment by section 219(d) of
Effective Date of 1991 Amendment
Section 307(j) of
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Commission on Agricultural Workers
Section 304 of
Section Referred to in Other Sections
This section is referred to in
§1161. Repealed. Pub. L. 103–416, title II, §219(ee)(1), Oct. 25, 1994, 108 Stat. 4319
Section, act June 27, 1952, ch. 477, title II, ch. 1, §210A, as added Nov. 6, 1986,
Effective Date of Repeal
Section 219(ee)(3) of
Part II—Admission Qualifications for Aliens; Travel Control of Citizens and Aliens
§1181. Admission of immigrants into the United States
(a) Documents required; admission under quotas before June 30, 1968
Except as provided in subsection (b) and subsection (c) of this section no immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and (2) presents a valid unexpired passport or other suitable travel document or document of identity and nationality, if such document is required under the regulations issued by the Attorney General. With respect to immigrants to be admitted under quotas of quota areas prior to June 30, 1968, no immigrant visa shall be deemed valid unless the immigrant is properly chargeable to the quota area under the quota of which the visa is issued.
(b) Readmission without required documents; Attorney General's discretion
Notwithstanding the provisions of
(c) Nonapplicability to aliens admitted as refugees
The provisions of subsection (a) of this section shall not apply to an alien whom the Attorney General admits to the United States under
(June 27, 1952, ch. 477, title II, ch. 2, §211,
Amendments
1990—Subsec. (b).
1980—Subsec. (a).
Subsec. (c).
1976—Subsec. (b).
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1182. Inadmissible aliens
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(1) Health-related grounds
(A) In general
Any alien—
(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome,
(ii) except as provided in subparagraph (C), who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices,
(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)—
(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or
(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or
(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict,
is inadmissible.
(B) Waiver authorized
For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g) of this section.
(C) Exception from immunization requirement for adopted children 10 years of age or younger
Clause (ii) of subparagraph (A) shall not apply to a child who—
(i) is 10 years of age or younger,
(ii) is described in
(iii) is seeking an immigrant visa as an immediate relative under
if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child's admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph.
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general
Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in
is inadmissible.
(ii) Exception
Clause (i)(I) shall not apply to an alien who committed only one crime if—
(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
(B) Multiple criminal convictions
Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.
(C) Controlled substance traffickers
Any alien who the consular officer or the Attorney General knows or has reason to believe—
(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in
(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity,
is inadmissible.
(D) Prostitution and commercialized vice
Any alien who—
(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,
(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or
(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution,
is inadmissible.
(E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution
Any alien—
(i) who has committed in the United States at any time a serious criminal offense (as defined in
(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,
(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and
(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense,
is inadmissible.
(F) Waiver authorized
For provision authorizing waiver of certain subparagraphs of this paragraph, see subsection (h) of this section.
(G) Foreign government officials who have engaged in particularly severe violations of religious freedom
Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time during the preceding 24-month period, particularly severe violations of religious freedom, as defined in
(H) Significant traffickers in persons
(i) In general
Any alien who is listed in a report submitted pursuant to
(ii) Beneficiaries of trafficking
Except as provided in clause (iii), any alien who the consular officer or the Attorney General knows or has reason to believe is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible.
(iii) Exception for certain sons and daughters
Clause (ii) shall not apply to a son or daughter who was a child at the time he or she received the benefit described in such clause.
(I) Money laundering
Any alien—
(i) who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or seeks to enter the United States to engage, in an offense which is described in
(ii) who a consular officer or the Attorney General knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in an offense which is described in such section;
is inadmissible.
(3) Security and related grounds
(A) In general
Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in—
(i) any activity (I) to violate any law of the United States relating to espionage or sabotage or (II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means,
is inadmissible.
(B) Terrorist activities
(i) In general
Any alien who—
(I) has engaged in a terrorist activity,
(II) a consular officer or the Attorney General knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv)),
(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity,
(IV) is a representative (as defined in clause (v)) of—
(aa) a foreign terrorist organization, as designated by the Secretary of State under
(bb) a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities,
(V) is a member of a foreign terrorist organization, as designated by the Secretary under
(VI) has used the alien's position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities, or
(VII) is the spouse or child of an alien who is inadmissible under this section, if the activity causing the alien to be found inadmissible occurred within the last 5 years,
is inadmissible. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.
(ii) Exception
Subclause (VII) of clause (i) does not apply to a spouse or child—
(I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or
(II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.
(iii) "Terrorist activity" defined
As used in this chapter, the term "terrorist activity" means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:
(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
(III) A violent attack upon an internationally protected person (as defined in
(IV) An assassination.
(V) The use of any—
(a) biological agent, chemical agent, or nuclear weapon or device, or
(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain),
with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.
(VI) A threat, attempt, or conspiracy to do any of the foregoing.
(iv) "Engage in terrorist activity" defined
As used in this chapter, the term "engage in terrorist activity" means, in an individual capacity or as a member of an organization—
(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;
(II) to prepare or plan a terrorist activity;
(III) to gather information on potential targets for terrorist activity;
(IV) to solicit funds or other things of value for—
(aa) a terrorist activity;
(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization's terrorist activity;
(V) to solicit any individual—
(aa) to engage in conduct otherwise described in this clause;
(bb) for membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc) for membership in a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization's terrorist activity; or
(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training—
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in clause (vi)(I) or (vi)(II); or
(dd) to a terrorist organization described in clause (vi)(III), unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization's terrorist activity.
This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that this clause should not apply.
(v) "Representative" defined
As used in this paragraph, the term "representative" includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.
(vi) "Terrorist organization" defined
As used in clause (i)(VI) and clause (iv), the term "terrorist organization" means an organization—
(I) designated under
(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General, as a terrorist organization, after finding that the organization engages in the activities described in subclause (I), (II), or (III) of clause (iv), or that the organization provides material support to further terrorist activity; or
(III) that is a group of two or more individuals, whether organized or not, which engages in the activities described in subclause (I), (II), or (III) of clause (iv).
(C) Foreign policy
(i) In general
An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.
(ii) Exception for officials
An alien who is an official of a foreign government or a purported government, or who is a candidate for election to a foreign government office during the period immediately preceding the election for that office, shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) solely because of the alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.
(iii) Exception for other aliens
An alien, not described in clause (ii), shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest.
(iv) Notification of determinations
If a determination is made under clause (iii) with respect to an alien, the Secretary of State must notify on a timely basis the chairmen of the Committees on the Judiciary and Foreign Affairs of the House of Representatives and of the Committees on the Judiciary and Foreign Relations of the Senate of the identity of the alien and the reasons for the determination.
(D) Immigrant membership in totalitarian party
(i) In general
Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.
(ii) Exception for involuntary membership
Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.
(iii) Exception for past membership
Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that—
(I) the membership or affiliation terminated at least—
(a) 2 years before the date of such application, or
(b) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and
(II) the alien is not a threat to the security of the United States.
(iv) Exception for close family members
The Attorney General may, in the Attorney General's discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.
(E) Participants in Nazi persecutions or genocide
(i) Participation in Nazi persecutions
Any alien who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—
(I) the Nazi government of Germany,
(II) any government in any area occupied by the military forces of the Nazi government of Germany,
(III) any government established with the assistance or cooperation of the Nazi government of Germany, or
(IV) any government which was an ally of the Nazi government of Germany,
ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion is inadmissible.
(ii) Participation in genocide
Any alien who has engaged in conduct that is defined as genocide for purposes of the International Convention on the Prevention and Punishment of Genocide is inadmissible.
(F) Association with terrorist organizations
Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.
(4) Public charge
(A) In general
Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.
(B) Factors to be taken into account
(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien's—
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial status; and
(V) education and skills.
(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under
(C) Family-sponsored immigrants
Any alien who seeks admission or adjustment of status under a visa number issued under
(i) the alien has obtained—
(I) status as a spouse or a child of a United States citizen pursuant to clause (ii), (iii), or (iv) of
(II) classification pursuant to clause (ii) or (iii) of
(ii) the person petitioning for the alien's admission (and any additional sponsor required under
(D) Certain employment-based immigrants
Any alien who seeks admission or adjustment of status under a visa number issued under
(5) Labor certification and qualifications for certain immigrants
(A) Labor certification
(i) In general
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and
(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
(ii) Certain aliens subject to special rule
For purposes of clause (i)(I), an alien described in this clause is an alien who—
(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the arts.
(iii) Professional athletes
(I) In general
A certification made under clause (i) with respect to a professional athlete shall remain valid with respect to the athlete after the athlete changes employer, if the new employer is a team in the same sport as the team which employed the athlete when the athlete first applied for the certification.
(II) "Professional athlete" defined
For purposes of subclause (I), the term "professional athlete" means an individual who is employed as an athlete by—
(aa) a team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or
(bb) any minor league team that is affiliated with such an association.
(iv) Long delayed adjustment applicants
A certification made under clause (i) with respect to an individual whose petition is covered by
(B) Unqualified physicians
An alien who is a graduate of a medical school not accredited by a body or bodies approved for the purpose by the Secretary of Education (regardless of whether such school of medicine is in the United States) and who is coming to the United States principally to perform services as a member of the medical profession is inadmissible, unless the alien (i) has passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health and Human Services) and (ii) is competent in oral and written English. For purposes of the previous sentence, an alien who is a graduate of a medical school shall be considered to have passed parts I and II of the National Board of Medical Examiners if the alien was fully and permanently licensed to practice medicine in a State on January 9, 1978, and was practicing medicine in a State on that date.
(C) Uncertified foreign health-care workers
Subject to subsection (r) of this section, any alien who seeks to enter the United States for the purpose of performing labor as a health-care worker, other than a physician, is inadmissible unless the alien presents to the consular officer, or, in the case of an adjustment of status, the Attorney General, a certificate from the Commission on Graduates of Foreign Nursing Schools, or a certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services, verifying that—
(i) the alien's education, training, license, and experience—
(I) meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application;
(II) are comparable with that required for an American health-care worker of the same type; and
(III) are authentic and, in the case of a license, unencumbered;
(ii) the alien has the level of competence in oral and written English considered by the Secretary of Health and Human Services, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant's ability to speak and write; and
(iii) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting the success on the profession's licensing or certification examination, the alien has passed such a test or has passed such an examination.
For purposes of clause (ii), determination of the standardized tests required and of the minimum scores that are appropriate are within the sole discretion of the Secretary of Health and Human Services and are not subject to further administrative or judicial review.
(D) Application of grounds
The grounds for inadmissibility of aliens under subparagraphs (A) and (B) shall apply to immigrants seeking admission or adjustment of status under paragraph (2) or (3) of
(6) Illegal entrants and immigration violators
(A) Aliens present without admission or parole
(i) In general
An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
(ii) Exception for certain battered women and children
Clause (i) shall not apply to an alien who demonstrates that—
(I) the alien qualifies for immigrant status under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of
(II)(a) the alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the spouse's or parent's family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, or (b) the alien's child has been battered or subjected to extreme cruelty by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty) or by a member of the spouse's or parent's family residing in the same household as the alien when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, and
(III) there was a substantial connection between the battery or cruelty described in subclause (I) or (II) and the alien's unlawful entry into the United States.
(B) Failure to attend removal proceeding
Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien's inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien's subsequent departure or removal is inadmissible.
(C) Misrepresentation
(i) In general
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.
(ii) Falsely claiming citizenship
(I) In general
Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including
(II) Exception
In the case of an alien making a representation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.
(iii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (i) of this section.
(D) Stowaways
Any alien who is a stowaway is inadmissible.
(E) Smugglers
(i) In general
Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.
(ii) Special rule in the case of family reunification
Clause (i) shall not apply in the case of alien who is an eligible immigrant (as defined in section 301(b)(1) of the Immigration Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative or under
(iii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)(11) of this section.
(F) Subject of civil penalty
(i) In general
An alien who is the subject of a final order for violation of
(ii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)(12) of this section.
(G) Student visa abusers
An alien who obtains the status of a nonimmigrant under
(7) Documentation requirements
(A) Immigrants
(i) In general
Except as otherwise specifically provided in this chapter, any immigrant at the time of application for admission—
(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under
(II) whose visa has been issued without compliance with the provisions of
is inadmissible.
(ii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (k) of this section.
(B) Nonimmigrants
(i) In general
Any nonimmigrant who—
(I) is not in possession of a passport valid for a minimum of six months from the date of the expiration of the initial period of the alien's admission or contemplated initial period of stay authorizing the alien to return to the country from which the alien came or to proceed to and enter some other country during such period, or
(II) is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission,
is inadmissible.
(ii) General waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)(4) of this section.
(iii) Guam visa waiver
For provision authorizing waiver of clause (i) in the case of visitors to Guam, see subsection (l) of this section.
(iv) Visa waiver program
For authority to waive the requirement of clause (i) under a program, see
(8) Ineligible for citizenship
(A) In general
Any immigrant who is permanently ineligible to citizenship is inadmissible.
(B) Draft evaders
Any person who has departed from or who has remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency is inadmissible, except that this subparagraph shall not apply to an alien who at the time of such departure was a nonimmigrant and who is seeking to reenter the United States as a nonimmigrant.
(9) Aliens previously removed
(A) Certain aliens previously removed
(i) Arriving aliens
Any alien who has been ordered removed under
(ii) Other aliens
Any alien not described in clause (i) who—
(I) has been ordered removed under
(II) departed the United States while an order of removal was outstanding,
and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.
(iii) Exception
Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.
(B) Aliens unlawfully present
(i) In general
Any alien (other than an alien lawfully admitted for permanent residence) who—
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) 3 of this title) prior to the commencement of proceedings under
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,
is inadmissible.
(ii) Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.
(iii) Exceptions
(I) Minors
No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i).
(II) Asylees
No period of time in which an alien has a bona fide application for asylum pending under
(III) Family unity
No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (i).
(IV) Battered women and children
Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if "violation of the terms of the alien's nonimmigrant visa" were substituted for "unlawful entry into the United States" in subclause (III) of that paragraph.
(iv) Tolling for good cause
In the case of an alien who—
(I) has been lawfully admitted or paroled into the United States,
(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and
(III) has not been employed without authorization in the United States before or during the pendency of such application,
the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.
(v) Waiver
The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.
(C) Aliens unlawfully present after previous immigration violations
(i) In general
Any alien who—
(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or
(II) has been ordered removed under
and who enters or attempts to reenter the United States without being admitted is inadmissible.
(ii) Exception
Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission. The Attorney General in the Attorney General's discretion may waive the provisions of subsection (a)(9)(C)(i) of this section in the case of an alien to whom the Attorney General has granted classification under clause (iii), (iv), or (v) of
(1) the alien's having been battered or subjected to extreme cruelty; and
(2) the alien's—
(A) removal;
(B) departure from the United States;
(C) reentry or reentries into the United States; or
(D) attempted reentry into the United States.
(10) Miscellaneous
(A) Practicing polygamists
Any immigrant who is coming to the United States to practice polygamy is inadmissible.
(B) Guardian required to accompany helpless alien
Any alien—
(i) who is accompanying another alien who is inadmissible and who is certified to be helpless from sickness, mental or physical disability, or infancy pursuant to
(ii) whose protection or guardianship is determined to be required by the alien described in clause (i),
is inadmissible.
(C) International child abduction
(i) In general
Except as provided in clause (ii), any alien who, after entry of an order by a court in the United States granting custody to a person of a United States citizen child who detains or retains the child, or withholds custody of the child, outside the United States from the person granted custody by that order, is inadmissible until the child is surrendered to the person granted custody by that order.
(ii) Aliens supporting abductors and relatives of abductors
Any alien who—
(I) is known by the Secretary of State to have intentionally assisted an alien in the conduct described in clause (i),
(II) is known by the Secretary of State to be intentionally providing material support or safe haven to an alien described in clause (i), or
(III) is a spouse (other than the spouse who is the parent of the abducted child), child (other than the abducted child), parent, sibling, or agent of an alien described in clause (i), if such person has been designated by the Secretary of State at the Secretary's sole and unreviewable discretion, is inadmissible until the child described in clause (i) is surrendered to the person granted custody by the order described in that clause, and such person and child are permitted to return to the United States or such person's place of residence.
(iii) Exceptions
Clauses (i) and (ii) shall not apply—
(I) to a government official of the United States who is acting within the scope of his or her official duties;
(II) to a government official of any foreign government if the official has been designated by the Secretary of State at the Secretary's sole and unreviewable discretion; or
(III) so long as the child is located in a foreign state that is a party to the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980.
(D) Unlawful voters
(i) In general
Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is inadmissible.
(ii) Exception
In the case of an alien who voted in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such violation.
(E) Former citizens who renounced citizenship to avoid taxation
Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is inadmissible.
(b) Notices of denials
(1) Subject to paragraphs (2) and (3), if an alien's application for a visa, for admission to the United States, or for adjustment of status is denied by an immigration or consular officer because the officer determines the alien to be inadmissible under subsection (a) of this section, the officer shall provide the alien with a timely written notice that—
(A) states the determination, and
(B) lists the specific provision or provisions of law under which the alien is inadmissible or adjustment 4 of status.
(2) The Secretary of State may waive the requirements of paragraph (1) with respect to a particular alien or any class or classes of inadmissible aliens.
(3) Paragraph (1) does not apply to any alien inadmissible under paragraph (2) or (3) of subsection (a) of this section.
(c) Repealed. Pub. L. 104–208, div. C, title III, §304(b), Sept. 30, 1996, 110 Stat. 3009–597
(d) Temporary admission of nonimmigrants
(1) The Attorney General shall determine whether a ground for inadmissibility exists with respect to a nonimmigrant described in
(2) Repealed.
(3) Except as provided in this subsection, an alien (A) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) of this section (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (B) who is inadmissible under subsection (a) of this section (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.
(4) Either or both of the requirements of paragraph (7)(B)(i) of subsection (a) of this section may be waived by the Attorney General and the Secretary of State acting jointly (A) on the basis of unforeseen emergency in individual cases, or (B) on the basis of reciprocity with respect to nationals of foreign contiguous territory or of adjacent islands and residents thereof having a common nationality with such nationals, or (C) in the case of aliens proceeding in immediate and continuous transit through the United States under contracts authorized in
(5)(A) The Attorney General may, except as provided in subparagraph (B) or in
(B) The Attorney General may not parole into the United States an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee under
(6) Repealed.
(7) The provisions of subsection (a) of this section (other than paragraph (7)) shall be applicable to any alien who shall leave Guam, Puerto Rico, or the Virgin Islands of the United States, and who seeks to enter the continental United States or any other place under the jurisdiction of the United States. The Attorney General shall by regulations provide a method and procedure for the temporary admission to the United States of the aliens described in this proviso.5 Any alien described in this paragraph, who is denied admission to the United States, shall be immediately removed in the manner provided by
(8) Upon a basis of reciprocity accredited officials of foreign governments, their immediate families, attendants, servants, and personal employees may be admitted in immediate and continuous transit through the United States without regard to the provisions of this section except paragraphs (3)(A), (3)(B), (3)(C), and (7)(B) of subsection (a) of this section.
(9), (10) Repealed.
(11) The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection (a)(6)(E) of this section in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who is otherwise admissible to the United States as a returning resident under
(12) The Attorney General may, in the discretion of the Attorney General for humanitarian purposes or to assure family unity, waive application of clause (i) of subsection (a)(6)(F) of this section—
(A) in the case of an alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation or removal and who is otherwise admissible to the United States as a returning resident under
(B) in the case of an alien seeking admission or adjustment of status under
if no previous civil money penalty was imposed against the alien under
(13)(A) The Attorney General shall determine whether a ground for inadmissibility exists with respect to a nonimmigrant described in
(B) In addition to any other waiver that may be available under this section, in the case of a nonimmigrant described in
(i) subsection (a)(1) of this section; and
(ii) any other provision of subsection (a) of this section (excluding paragraphs (3), (4), (10)(C), and (10(E)) 6 if the activities rendering the alien inadmissible under the provision were caused by, or were incident to, the victimization described in
(14) The Attorney General shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in
(e) Educational visitor status; foreign residence requirement; waiver
No person admitted under
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
(g) Bond and conditions for admission of alien inadmissible on health-related grounds
The Attorney General may waive the application of—
(1) subsection (a)(1)(A)(i) in the case of any alien who—
(A) is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa,
(B) has a son or daughter who is a United States citizen, or an alien lawfully admitted for permanent residence, or an alien who has been issued an immigrant visa; or
(C) qualifies for classification under clause (iii) or (iv) of
in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in the discretion of the Attorney General after consultation with the Secretary of Health and Human Services, may by regulation prescribe;
(2) subsection (a)(1)(A)(ii) of this section in the case of any alien—
(A) who receives vaccination against the vaccine-preventable disease or diseases for which the alien has failed to present documentation of previous vaccination,
(B) for whom a civil surgeon, medical officer, or panel physician (as those terms are defined by section 34.2 of title 42 of the Code of Federal Regulations) certifies, according to such regulations as the Secretary of Health and Human Services may prescribe, that such vaccination would not be medically appropriate, or
(C) under such circumstances as the Attorney General provides by regulation, with respect to whom the requirement of such a vaccination would be contrary to the alien's religious beliefs or moral convictions; or
(3) subsection (a)(1)(A)(iii) of this section in the case of any alien, in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in the discretion of the Attorney General after consultation with the Secretary of Health and Human Services, may by regulation prescribe.
(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)
The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) of this section and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if—
(1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that—
(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status,
(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or
(C) the alien qualifies for classification under clause (iii) or (iv) of
(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.
No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.
(i) Admission of immigrant inadmissible for fraud or willful misrepresentation of material fact
(1) The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) of this section in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien or, in the case of an alien granted classification under clause (iii) or (iv) of
(2) No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph (1).
(j) Limitation on immigration of foreign medical graduates
(1) The additional requirements referred to in
(A) A school of medicine or of one of the other health professions, which is accredited by a body or bodies approved for the purpose by the Secretary of Education, has agreed in writing to provide the graduate medical education or training under the program for which the alien is coming to the United States or to assume responsibility for arranging for the provision thereof by an appropriate public or nonprofit private institution or agency, except that, in the case of such an agreement by a school of medicine, any one or more of its affiliated hospitals which are to participate in the provision of the graduate medical education or training must join in the agreement.
(B) Before making such agreement, the accredited school has been satisfied that the alien (i) is a graduate of a school of medicine which is accredited by a body or bodies approved for the purpose by the Secretary of Education (regardless of whether such school of medicine is in the United States); or (ii)(I) has passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health and Human Services), (II) has competency in oral and written English, (III) will be able to adapt to the educational and cultural environment in which he will be receiving his education or training, and (IV) has adequate prior education and training to participate satisfactorily in the program for which he is coming to the United States. For the purposes of this subparagraph, an alien who is a graduate of a medical school shall be considered to have passed parts I and II of the National Board of Medical Examiners examination if the alien was fully and permanently licensed to practice medicine in a State on January 9, 1978, and was practicing medicine in a State on that date.
(C) The alien has made a commitment to return to the country of his nationality or last residence upon completion of the education or training for which he is coming to the United States, and the government of the country of his nationality or last residence has provided a written assurance, satisfactory to the Secretary of Health and Human Services, that there is a need in that country for persons with the skills the alien will acquire in such education or training.
(D) The duration of the alien's participation in the program of graduate medical education or training for which the alien is coming to the United States is limited to the time typically required to complete such program, as determined by the Director of the United States Information Agency at the time of the alien's admission into the United States, based on criteria which are established in coordination with the Secretary of Health and Human Services and which take into consideration the published requirements of the medical specialty board which administers such education or training program; except that—
(i) such duration is further limited to seven years unless the alien has demonstrated to the satisfaction of the Director that the country to which the alien will return at the end of such specialty education or training has an exceptional need for an individual trained in such specialty, and
(ii) the alien may, once and not later than two years after the date the alien is admitted to the United States as an exchange visitor or acquires exchange visitor status, change the alien's designated program of graduate medical education or training if the Director approves the change and if a commitment and written assurance with respect to the alien's new program have been provided in accordance with subparagraph (C).
(E) The alien furnishes the Attorney General each year with an affidavit (in such form as the Attorney General shall prescribe) that attests that the alien (i) is in good standing in the program of graduate medical education or training in which the alien is participating, and (ii) will return to the country of his nationality or last residence upon completion of the education or training for which he came to the United States.
(2) An alien who is a graduate of a medical school and who is coming to the United States to perform services as a member of the medical profession may not be admitted as a nonimmigrant under
(A) the alien is coming pursuant to an invitation from a public or nonprofit private educational or research institution or agency in the United States to teach or conduct research, or both, at or for such institution or agency, or
(B)(i) the alien has passed the Federation licensing examination (administered by the Federation of State Medical Boards of the United States) or an equivalent examination as determined by the Secretary of Health and Human Services, and
(ii)(I) has competency in oral and written English or (II) is a graduate of a school of medicine which is accredited by a body or bodies approved for the purpose by the Secretary of Education (regardless of whether such school of medicine is in the United States).
(3) Omitted.
(k) Attorney General's discretion to admit otherwise inadmissible aliens who possess immigrant visas
Any alien, inadmissible from the United States under paragraph (5)(A) or (7)(A)(i) of subsection (a) of this section, who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant's application for admission.
(l) Guam; waiver of requirements for nonimmigrant visitors; conditions of waiver; acceptance of funds from Guam
(1) The requirement of paragraph (7)(B)(i) of subsection (a) of this section may be waived by the Attorney General, the Secretary of State, and the Secretary of the Interior, acting jointly, in the case of an alien applying for admission as a nonimmigrant visitor for business or pleasure and solely for entry into and stay on Guam for a period not to exceed fifteen days, if the Attorney General, the Secretary of State, and the Secretary of the Interior, after consultation with the Governor of Guam, jointly determine that—
(A) an adequate arrival and departure control system has been developed on Guam, and
(B) such a waiver does not represent a threat to the welfare, safety, or security of the United States or its territories and commonwealths.
(2) An alien may not be provided a waiver under this subsection unless the alien has waived any right—
(A) to review or appeal under this chapter of an immigration officer's determination as to the admissibility of the alien at the port of entry into Guam, or
(B) to contest, other than on the basis of an application for asylum, any action for removal of the alien.
(3) If adequate appropriated funds to carry out this subsection are not otherwise available, the Attorney General is authorized to accept from the Government of Guam such funds as may be tendered to cover all or any part of the cost of administration and enforcement of this subsection.
(m) Requirements for admission of nonimmigrant nurses
(1) The qualifications referred to in
(A) has obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained nursing education or has received nursing education in the United States;
(B) has passed an appropriate examination (recognized in regulations promulgated in consultation with the Secretary of Health and Human Services) or has a full and unrestricted license under State law to practice professional nursing in the State of intended employment; and
(C) is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States and is authorized under such laws to be employed by the facility.
(2)(A) The attestation referred to in
(i) The facility meets all the requirements of paragraph (6).
(ii) The employment of the alien will not adversely affect the wages and working conditions of registered nurses similarly employed.
(iii) The alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility.
(iv) The facility has taken and is taking timely and significant steps designed to recruit and retain sufficient registered nurses who are United States citizens or immigrants who are authorized to perform nursing services, in order to remove as quickly as reasonably possible the dependence of the facility on nonimmigrant registered nurses.
(v) There is not a strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a registered nurse employed by the facility within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition, and the employment of such an alien is not intended or designed to influence an election for a bargaining representative for registered nurses of the facility.
(vi) At the time of the filing of the petition for registered nurses under
(vii) The facility will not, at any time, employ a number of aliens issued visas or otherwise provided nonimmigrant status under
(viii) The facility will not, with respect to any alien issued a visa or otherwise provided nonimmigrant status under
(I) authorize the alien to perform nursing services at any worksite other than a worksite controlled by the facility; or
(II) transfer the place of employment of the alien from one worksite to another.
Nothing in clause (iv) shall be construed as requiring a facility to have taken significant steps described in such clause before November 12, 1999. A copy of the attestation shall be provided, within 30 days of the date of filing, to registered nurses employed at the facility on the date of filing.
(B) For purposes of subparagraph (A)(iv), each of the following shall be considered a significant step reasonably designed to recruit and retain registered nurses:
(i) Operating a training program for registered nurses at the facility or financing (or providing participation in) a training program for registered nurses elsewhere.
(ii) Providing career development programs and other methods of facilitating health care workers to become registered nurses.
(iii) Paying registered nurses wages at a rate higher than currently being paid to registered nurses similarly employed in the geographic area.
(iv) Providing reasonable opportunities for meaningful salary advancement by registered nurses.
The steps described in this subparagraph shall not be considered to be an exclusive list of the significant steps that may be taken to meet the conditions of subparagraph (A)(iv). Nothing in this subparagraph shall require a facility to take more than one step if the facility can demonstrate that taking a second step is not reasonable.
(C) Subject to subparagraph (E), an attestation under subparagraph (A)—
(i) shall expire on the date that is the later of—
(I) the end of the one-year period beginning on the date of its filing with the Secretary of Labor; or
(II) the end of the period of admission under
(ii) shall apply to petitions filed during the one-year period beginning on the date of its filing with the Secretary of Labor if the facility states in each such petition that it continues to comply with the conditions in the attestation.
(D) A facility may meet the requirements under this paragraph with respect to more than one registered nurse in a single petition.
(E)(i) The Secretary of Labor shall compile and make available for public examination in a timely manner in Washington, D.C., a list identifying facilities which have filed petitions for nonimmigrants under
(ii) The Secretary of Labor shall establish a process, including reasonable time limits, for the receipt, investigation, and disposition of complaints respecting a facility's failure to meet conditions attested to or a facility's misrepresentation of a material fact in an attestation. Complaints may be filed by any aggrieved person or organization (including bargaining representatives, associations deemed appropriate by the Secretary, and other aggrieved parties as determined under regulations of the Secretary). The Secretary shall conduct an investigation under this clause if there is reasonable cause to believe that a facility fails to meet conditions attested to. Subject to the time limits established under this clause, this subparagraph shall apply regardless of whether an attestation is expired or unexpired at the time a complaint is filed.
(iii) Under such process, the Secretary shall provide, within 180 days after the date such a complaint is filed, for a determination as to whether or not a basis exists to make a finding described in clause (iv). If the Secretary determines that such a basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint within 60 days of the date of the determination.
(iv) If the Secretary of Labor finds, after notice and opportunity for a hearing, that a facility (for which an attestation is made) has failed to meet a condition attested to or that there was a misrepresentation of material fact in the attestation, the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per nurse per violation, with the total penalty not to exceed $10,000 per violation) as the Secretary determines to be appropriate. Upon receipt of such notice, the Attorney General shall not approve petitions filed with respect to a facility during a period of at least one year for nurses to be employed by the facility.
(v) In addition to the sanctions provided for under clause (iv), if the Secretary of Labor finds, after notice and an opportunity for a hearing, that a facility has violated the condition attested to under subparagraph (A)(iii) (relating to payment of registered nurses at the prevailing wage rate), the Secretary shall order the facility to provide for payment of such amounts of back pay as may be required to comply with such condition.
(F)(i) The Secretary of Labor shall impose on a facility filing an attestation under subparagraph (A) a filing fee, in an amount prescribed by the Secretary based on the costs of carrying out the Secretary's duties under this subsection, but not exceeding $250.
(ii) Fees collected under this subparagraph shall be deposited in a fund established for this purpose in the Treasury of the United States.
(iii) The collected fees in the fund shall be available to the Secretary of Labor, to the extent and in such amounts as may be provided in appropriations Acts, to cover the costs described in clause (i), in addition to any other funds that are available to the Secretary to cover such costs.
(3) The period of admission of an alien under
(4) The total number of nonimmigrant visas issued pursuant to petitions granted under
(A) For States with populations of less than 9,000,000, based upon the 1990 decennial census of population, 25 visas.
(B) For States with populations of 9,000,000 or more, based upon the 1990 decennial census of population, 50 visas.
(C) If the total number of visas available under this paragraph for a fiscal year quarter exceeds the number of qualified nonimmigrants who may be issued such visas during those quarters, the visas made available under this paragraph shall be issued without regard to the numerical limitation under subparagraph (A) or (B) of this paragraph during the last fiscal year quarter.
(5) A facility that has filed a petition under
(A) shall provide the nonimmigrant a wage rate and working conditions commensurate with those of nurses similarly employed by the facility;
(B) shall require the nonimmigrant to work hours commensurate with those of nurses similarly employed by the facility; and
(C) shall not interfere with the right of the nonimmigrant to join or organize a union.
(6) For purposes of this subsection and
(A) As of March 31, 1997, the hospital was located in a health professional shortage area (as defined in
(B) Based on its settled cost report filed under title XVIII of the Social Security Act [
(i) the hospital has not less than 190 licensed acute care beds;
(ii) the number of the hospital's inpatient days for such period which were made up of patients who (for such days) were entitled to benefits under part A of such title [
(iii) the number of the hospital's inpatient days for such period which were made up of patients who (for such days) were eligible for medical assistance under a State plan approved under title XIX of the Social Security Act [
(7) For purposes of paragraph (2)(A)(v), the term "lay off", with respect to a worker—
(A) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract; but
(B) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
Nothing in this paragraph is intended to limit an employee's or an employer's rights under a collective bargaining agreement or other employment contract.
(n) Labor condition application
(1) No alien may be admitted or provided status as an H–1B nonimmigrant in an occupational classification unless the employer has filed with the Secretary of Labor an application stating the following:
(A) The employer—
(i) is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H–1B nonimmigrant wages that are at least—
(I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or
(II) the prevailing wage level for the occupational classification in the area of employment,
whichever is greater, based on the best information available as of the time of filing the application, and
(ii) will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of workers similarly employed.
(B) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment.
(C) The employer, at the time of filing the application—
(i) has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer's employees in the occupational classification and area for which aliens are sought, or
(ii) if there is no such bargaining representative, has provided notice of filing in the occupational classification through such methods as physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which H–1B nonimmigrants are sought.
(D) The application shall contain a specification of the number of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed.
(E)(i) In the case of an application described in clause (ii), the employer did not displace and will not displace a United States worker (as defined in paragraph (4)) employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the application.
(ii) An application described in this clause is an application filed on or after the date final regulations are first promulgated to carry out this subparagraph, and before October 1, 2003, by an H–1B-dependent employer (as defined in paragraph (3)) or by an employer that has been found, on or after October 21, 1998, under paragraph (2)(C) or (5) to have committed a willful failure or misrepresentation during the 5-year period preceding the filing of the application. An application is not described in this clause if the only H–1B nonimmigrants sought in the application are exempt H–1B nonimmigrants.
(F) In the case of an application described in subparagraph (E)(ii), the employer will not place the nonimmigrant with another employer (regardless of whether or not such other employer is an H–1B-dependent employer) where—
(i) the nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by such other employer; and
(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer;
unless the employer has inquired of the other employer as to whether, and has no knowledge that, within the period beginning 90 days before and ending 90 days after the date of the placement of the nonimmigrant with the other employer, the other employer has displaced or intends to displace a United States worker employed by the other employer.
(G)(i) In the case of an application described in subparagraph (E)(ii), subject to clause (ii), the employer, prior to filing the application—
(I) has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants under subparagraph (A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought; and
(II) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought.
(ii) The conditions described in clause (i) shall not apply to an application filed with respect to the employment of an H–1B nonimmigrant who is described in subparagraph (A), (B), or (C) of
The employer shall make available for public examination, within one working day after the date on which an application under this paragraph is filed, at the employer's principal place of business or worksite, a copy of each such application (and such accompanying documents as are necessary). The Secretary shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under this subsection. Such list shall include the wage rate, number of aliens sought, period of intended employment, and date of need. The Secretary shall make such list available for public examination in Washington, D.C. The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide the certification described in
(2)(A) Subject to paragraph (5)(A), the Secretary shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's failure to meet a condition specified in an application submitted under paragraph (1) or a petitioner's misrepresentation of material facts in such an application. Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively. The Secretary shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.
(B) Under such process, the Secretary shall provide, within 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C). If the Secretary determines that such a reasonable basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with
(C)(i) If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(B), (1)(E), or (1)(F), a substantial failure to meet a condition of paragraph (1)(C), (1)(D), or (1)(G)(i)(I), or a misrepresentation of material fact in an application—
(I) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate; and
(II) the Attorney General shall not approve petitions filed with respect to that employer under
(ii) If the Secretary finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1), a willful misrepresentation of material fact in an application, or a violation of clause (iv)—
(I) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $5,000 per violation) as the Secretary determines to be appropriate; and
(II) the Attorney General shall not approve petitions filed with respect to that employer under
(iii) If the Secretary finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1) or a willful misrepresentation of material fact in an application, in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the application—
(I) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $35,000 per violation) as the Secretary determines to be appropriate; and
(II) the Attorney General shall not approve petitions filed with respect to that employer under
(iv) It is a violation of this clause for an employer who has filed an application under this subsection to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this clause, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of this subsection or any rule or regulation pertaining to this subsection.
(v) The Secretary of Labor and the Attorney General shall devise a process under which an H–1B nonimmigrant who files a complaint regarding a violation of clause (iv) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.
(vi)(I) It is a violation of this clause for an employer who has filed an application under this subsection to require an H–1B nonimmigrant to pay a penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer. The Secretary shall determine whether a required payment is a penalty (and not liquidated damages) pursuant to relevant State law.
(II) It is a violation of this clause for an employer who has filed an application under this subsection to require an alien who is the subject of a petition filed under
(III) If the Secretary finds, after notice and opportunity for a hearing, that an employer has committed a violation of this clause, the Secretary may impose a civil monetary penalty of $1,000 for each such violation and issue an administrative order requiring the return to the nonimmigrant of any amount paid in violation of this clause, or, if the nonimmigrant cannot be located, requiring payment of any such amount to the general fund of the Treasury.
(vii)(I) It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application under this subsection and who places an H–1B nonimmigrant designated as a full-time employee on the petition filed under
(II) It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application under this subsection and who places an H–1B nonimmigrant designated as a part-time employee on the petition filed under
(III) In the case of an H–1B nonimmigrant who has not yet entered into employment with an employer who has had approved an application under this subsection, and a petition under
(IV) This clause does not apply to a failure to pay wages to an H–1B nonimmigrant for nonproductive time due to non-work-related factors, such as the voluntary request of the nonimmigrant for an absence or circumstances rendering the nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an employer that is a school or other educational institution from applying to an H–1B nonimmigrant an established salary practice of the employer, under which the employer pays to H–1B nonimmigrants and United States workers in the same occupational classification an annual salary in disbursements over fewer than 12 months, if—
(aa) the nonimmigrant agrees to the compressed annual salary payments prior to the commencement of the employment; and
(bb) the application of the salary practice to the nonimmigrant does not otherwise cause the nonimmigrant to violate any condition of the nonimmigrant's authorization under this chapter to remain in the United States.
(VI) This clause shall not be construed as superseding clause (viii).
(viii) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an application under this subsection to fail to offer to an H–1B nonimmigrant, during the nonimmigrant's period of authorized employment, benefits and eligibility for benefits (including the opportunity to participate in health, life, disability, and other insurance plans; the opportunity to participate in retirement and savings plans; and cash bonuses and noncash compensation, such as stock options (whether or not based on performance)) on the same basis, and in accordance with the same criteria, as the employer offers to United States workers.
(D) If the Secretary finds, after notice and opportunity for a hearing, that an employer has not paid wages at the wage level specified under the application and required under paragraph (1), the Secretary shall order the employer to provide for payment of such amounts of back pay as may be required to comply with the requirements of paragraph (1), whether or not a penalty under subparagraph (C) has been imposed.
(E) If an H–1B-dependent employer places a nonexempt H–1B nonimmigrant with another employer as provided under paragraph (1)(F) and the other employer has displaced or displaces a United States worker employed by such other employer during the period described in such paragraph, such displacement shall be considered for purposes of this paragraph a failure, by the placing employer, to meet a condition specified in an application submitted under paragraph (1); except that the Attorney General may impose a sanction described in subclause (II) of subparagraph (C)(i), (C)(ii), or (C)(iii) only if the Secretary of Labor found that such placing employer—
(i) knew or had reason to know of such displacement at the time of the placement of the nonimmigrant with the other employer; or
(ii) has been subject to a sanction under this subparagraph based upon a previous placement of an H–1B nonimmigrant with the same other employer.
(F) The Secretary may, on a case-by-case basis, subject an employer to random investigations for a period of up to 5 years, beginning on the date (on or after October 21, 1998) on which the employer is found by the Secretary to have committed a willful failure to meet a condition of paragraph (1) (or has been found under paragraph (5) to have committed a willful failure to meet the condition of paragraph (1)(G)(i)(II)) or to have made a willful misrepresentation of material fact in an application. The preceding sentence shall apply to an employer regardless of whether or not the employer is an H–1B-dependent employer. The authority of the Secretary under this subparagraph shall not be construed to be subject to, or limited by, the requirements of subparagraph (A).
(G) Omitted
(H) Nothing in this subsection shall be construed as superseding or preempting any other enforcement-related authority under this chapter (such as the authorities under
(3)(A) For purposes of this subsection, the term "H–1B-dependent employer" means an employer that—
(i)(I) has 25 or fewer full-time equivalent employees who are employed in the United States; and (II) employs more than 7 H–1B nonimmigrants;
(ii)(I) has at least 26 but not more than 50 full-time equivalent employees who are employed in the United States; and (II) employs more than 12 H–1B nonimmigrants; or
(iii)(I) has at least 51 full-time equivalent employees who are employed in the United States; and (II) employs H–1B nonimmigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees.
(B) For purposes of this subsection—
(i) the term "exempt H–1B nonimmigrant" means an H–1B nonimmigrant who—
(I) receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000; or
(II) has attained a master's or higher degree (or its equivalent) in a specialty related to the intended employment; and
(ii) the term "nonexempt H–1B nonimmigrant" means an H–1B nonimmigrant who is not an exempt H–1B nonimmigrant.
(C) For purposes of subparagraph (A)—
(i) in computing the number of full-time equivalent employees and the number of H–1B nonimmigrants, exempt H–1B nonimmigrants shall not be taken into account during the longer of—
(I) the 6-month period beginning on October 21, 1998; or
(II) the period beginning on October 21, 1998, and ending on the date final regulations are issued to carry out this paragraph; and
(ii) any group treated as a single employer under subsection (b), (c), (m), or (o) of
(4) For purposes of this subsection:
(A) The term "area of employment" means the area within normal commuting distance of the worksite or physical location where the work of the H–1B nonimmigrant is or will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment.
(B) In the case of an application with respect to one or more H–1B nonimmigrants by an employer, the employer is considered to "displace" a United States worker from a job if the employer lays off the worker from a job that is essentially the equivalent of the job for which the nonimmigrant or nonimmigrants is or are sought. A job shall not be considered to be essentially equivalent of another job unless it involves essentially the same responsibilities, was held by a United States worker with substantially equivalent qualifications and experience, and is located in the same area of employment as the other job.
(C) The term "H–1B nonimmigrant" means an alien admitted or provided status as a nonimmigrant described in
(D)(i) The term "lays off", with respect to a worker—
(I) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract (other than a temporary employment contract entered into in order to evade a condition described in subparagraph (E) or (F) of paragraph (1)); but
(II) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under paragraph (1)(F), with either employer described in such paragraph) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
(ii) Nothing in this subparagraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.
(E) The term "United States worker" means an employee who—
(i) is a citizen or national of the United States; or
(ii) is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under
(5)(A) This paragraph shall apply instead of subparagraphs (A) through (E) of paragraph (2) in the case of a violation described in subparagraph (B), but shall not be construed to limit or affect the authority of the Secretary or the Attorney General with respect to any other violation.
(B) The Attorney General shall establish a process for the receipt, initial review, and disposition in accordance with this paragraph of complaints respecting an employer's failure to meet the condition of paragraph (1)(G)(i)(II) or a petitioner's misrepresentation of material facts with respect to such condition. Complaints may be filed by an aggrieved individual who has submitted a resume or otherwise applied in a reasonable manner for the job that is the subject of the condition. No proceeding shall be conducted under this paragraph on a complaint concerning such a failure or misrepresentation unless the Attorney General determines that the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively.
(C) If the Attorney General finds that a complaint has been filed in accordance with subparagraph (B) and there is reasonable cause to believe that such a failure or misrepresentation described in such complaint has occurred, the Attorney General shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service. The procedure and rules of such Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings. The Attorney General shall pay the fee and expenses of the arbitrator.
(D)(i) The arbitrator shall make findings respecting whether a failure or misrepresentation described in subparagraph (B) occurred. If the arbitrator concludes that failure or misrepresentation was willful, the arbitrator shall make a finding to that effect. The arbitrator may not find such a failure or misrepresentation (or that such a failure or misrepresentation was willful) unless the complainant demonstrates such a failure or misrepresentation (or its willful character) by clear and convincing evidence. The arbitrator shall transmit the findings in the form of a written opinion to the parties to the arbitration and the Attorney General. Such findings shall be final and conclusive, and, except as provided in this subparagraph, no official or court of the United States shall have power or jurisdiction to review any such findings.
(ii) The Attorney General may review and reverse or modify the findings of an arbitrator only on the same bases as an award of an arbitrator may be vacated or modified under
(iii) With respect to the findings of an arbitrator, a court may review only the actions of the Attorney General under clause (ii) and may set aside such actions only on the grounds described in subparagraph (A), (B), or (C) of
(E) If the Attorney General receives a finding of an arbitrator under this paragraph that an employer has failed to meet the condition of paragraph (1)(G)(i)(II) or has misrepresented a material fact with respect to such condition, unless the Attorney General reverses or modifies the finding under subparagraph (D)(ii)—
(i) the Attorney General may impose administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation or $5,000 per violation in the case of a willful failure or misrepresentation) as the Attorney General determines to be appropriate; and
(ii) the Attorney General is authorized to not approve petitions filed, with respect to that employer and for aliens to be employed by the employer, under
(I) during a period of not more than 1 year; or
(II) in the case of a willful failure or willful misrepresentation, during a period of not more than 2 years.
(F) The Attorney General shall not delegate, to any other employee or official of the Department of Justice, any function of the Attorney General under this paragraph, until 60 days after the Attorney General has submitted a plan for such delegation to the Committees on the Judiciary of the United States House of Representatives and the Senate.
(o) Omitted
(p) Computation of prevailing wage level
(1) In computing the prevailing wage level for an occupational classification in an area of employment for purposes of subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section in the case of an employee of—
(A) an institution of higher education (as defined in
(B) a nonprofit research organization or a Governmental research organization,
the prevailing wage level shall only take into account employees at such institutions and organizations in the area of employment.
(2) With respect to a professional athlete (as defined in subsection (a)(5)(A)(iii)(II) of this section) when the job opportunity is covered by professional sports league rules or regulations, the wage set forth in those rules or regulations shall be considered as not adversely affecting the wages of United States workers similarly employed and be considered the prevailing wage.
(q) Academic honoraria
Any alien admitted under
(r) Exception for certain alien nurses
Subsection (a)(5)(C) of this section shall not apply to an alien who seeks to enter the United States for the purpose of performing labor as a nurse who presents to the consular officer (or in the case of an adjustment of status, the Attorney General) a certified statement from the Commission on Graduates of Foreign Nursing Schools (or an equivalent independent credentialing organization approved for the certification of nurses under subsection (a)(5)(C) of this section by the Attorney General in consultation with the Secretary of Health and Human Services) that—
(1) the alien has a valid and unrestricted license as a nurse in a State where the alien intends to be employed and such State verifies that the foreign licenses of alien nurses are authentic and unencumbered;
(2) the alien has passed the National Council Licensure Examination (NCLEX);
(3) the alien is a graduate of a nursing program—
(A) in which the language of instruction was English;
(B) located in a country—
(i) designated by such commission not later than 30 days after November 12, 1999, based on such commission's assessment that the quality of nursing education in that country, and the English language proficiency of those who complete such programs in that country, justify the country's designation; or
(ii) designated on the basis of such an assessment by unanimous agreement of such commission and any equivalent credentialing organizations which have been approved under subsection (a)(5)(C) of this section for the certification of nurses under this subsection; and
(C)(i) which was in operation on or before November 12, 1999; or
(ii) has been approved by unanimous agreement of such commission and any equivalent credentialing organizations which have been approved under subsection (a)(5)(C) of this section for the certification of nurses under this subsection.
(s) Consideration of benefits received as battered alien in determination of inadmissibility as likely to become public charge
In determining whether an alien described in subsection (a)(4)(C)(i) of this section is inadmissible under subsection (a)(4) of this section or ineligible to receive an immigrant visa or otherwise to adjust to the status of permanent resident by reason of subsection (a)(4) of this section, the consular officer or the Attorney General shall not consider any benefits the alien may have received that were authorized under
(t) Nonimmigrant professionals; labor attestations
(1) No alien may be admitted or provided status as a nonimmigrant under
(A) The employer—
(i) is offering and will offer during the period of authorized employment to aliens admitted or provided status under
(I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or
(II) the prevailing wage level for the occupational classification in the area of employment,
whichever is greater, based on the best information available as of the time of filing the attestation; and
(ii) will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of workers similarly employed.
(B) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment.
(C) The employer, at the time of filing the attestation—
(i) has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer's employees in the occupational classification and area for which aliens are sought; or
(ii) if there is no such bargaining representative, has provided notice of filing in the occupational classification through such methods as physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which nonimmigrants under
(D) A specification of the number of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed.
(2)(A) The employer shall make available for public examination, within one working day after the date on which an attestation under this subsection is filed, at the employer's principal place of business or worksite, a copy of each such attestation (and such accompanying documents as are necessary).
(B)(i) The Secretary of Labor shall compile, on a current basis, a list (by employer and by occupational classification) of the attestations filed under this subsection. Such list shall include, with respect to each attestation, the wage rate, number of aliens sought, period of intended employment, and date of need.
(ii) The Secretary of Labor shall make such list available for public examination in Washington, D.C.
(C) The Secretary of Labor shall review an attestation filed under this subsection only for completeness and obvious inaccuracies. Unless the Secretary of Labor finds that an attestation is incomplete or obviously inaccurate, the Secretary of Labor shall provide the certification described in
(3)(A) The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting the failure of an employer to meet a condition specified in an attestation submitted under this subsection or misrepresentation by the employer of material facts in such an attestation. Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively. The Secretary of Labor shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.
(B) Under the process described in subparagraph (A), the Secretary of Labor shall provide, within 30 days after the date a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C). If the Secretary of Labor determines that such a reasonable basis exists, the Secretary of Labor shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with
(C)(i) If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(B), a substantial failure to meet a condition of paragraph (1)(C) or (1)(D), or a misrepresentation of material fact in an attestation—
(I) the Secretary of Labor shall notify the Secretary of State and the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary of Labor determines to be appropriate; and
(II) the Secretary of State or the Secretary of Homeland Security, as appropriate, shall not approve petitions or applications filed with respect to that employer under
(ii) If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1), a willful misrepresentation of material fact in an attestation, or a violation of clause (iv)—
(I) the Secretary of Labor shall notify the Secretary of State and the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $5,000 per violation) as the Secretary of Labor determines to be appropriate; and
(II) the Secretary of State or the Secretary of Homeland Security, as appropriate, shall not approve petitions or applications filed with respect to that employer under
(iii) If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1) or a willful misrepresentation of material fact in an attestation, in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition or application supported by the attestation—
(I) the Secretary of Labor shall notify the Secretary of State and the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $35,000 per violation) as the Secretary of Labor determines to be appropriate; and
(II) the Secretary of State or the Secretary of Homeland Security, as appropriate, shall not approve petitions or applications filed with respect to that employer under
(iv) It is a violation of this clause for an employer who has filed an attestation under this subsection to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this clause, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of this subsection or any rule or regulation pertaining to this subsection.
(v) The Secretary of Labor and the Secretary of Homeland Security shall devise a process under which a nonimmigrant under
(vi)(I) It is a violation of this clause for an employer who has filed an attestation under this subsection to require a nonimmigrant under
(II) If the Secretary of Labor finds, after notice and opportunity for a hearing, that an employer has committed a violation of this clause, the Secretary of Labor may impose a civil monetary penalty of $1,000 for each such violation and issue an administrative order requiring the return to the nonimmigrant of any amount paid in violation of this clause, or, if the nonimmigrant cannot be located, requiring payment of any such amount to the general fund of the Treasury.
(vii)(I) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an attestation under this subsection and who places a nonimmigrant under
(II) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an attestation under this subsection and who places a nonimmigrant under
(III) In the case of a nonimmigrant under
(IV) This clause does not apply to a failure to pay wages to a nonimmigrant under
(V) This clause shall not be construed as prohibiting an employer that is a school or other educational institution from applying to a nonimmigrant under
(aa) the nonimmigrant agrees to the compressed annual salary payments prior to the commencement of the employment; and
(bb) the application of the salary practice to the nonimmigrant does not otherwise cause the nonimmigrant to violate any condition of the nonimmigrant's authorization under this chapter to remain in the United States.
(VI) This clause shall not be construed as superseding clause (viii).
(viii) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an attestation under this subsection to fail to offer to a nonimmigrant under
(D) If the Secretary of Labor finds, after notice and opportunity for a hearing, that an employer has not paid wages at the wage level specified in the attestation and required under paragraph (1), the Secretary of Labor shall order the employer to provide for payment of such amounts of back pay as may be required to comply with the requirements of paragraph (1), whether or not a penalty under subparagraph (C) has been imposed.
(E) The Secretary of Labor may, on a case-by-case basis, subject an employer to random investigations for a period of up to 5 years, beginning on the date on which the employer is found by the Secretary of Labor to have committed a willful failure to meet a condition of paragraph (1) or to have made a willful misrepresentation of material fact in an attestation. The authority of the Secretary of Labor under this subparagraph shall not be construed to be subject to, or limited by, the requirements of subparagraph (A).
(F) Nothing in this subsection shall be construed as superseding or preempting any other enforcement-related authority under this chapter (such as the authorities under
(4) For purposes of this subsection:
(A) The term "area of employment" means the area within normal commuting distance of the worksite or physical location where the work of the nonimmigrant under
(B) In the case of an attestation with respect to one or more nonimmigrants under
(C)(i) The term "lays off", with respect to a worker—
(I) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract; but
(II) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
(ii) Nothing in this subparagraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.
(D) The term "United States worker" means an employee who—
(i) is a citizen or national of the United States; or
(ii) is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under
(June 27, 1952, ch. 477, title II, ch. 2, §212,
Amendment of Section
For termination of amendment by section 107(c) of
References in Text
Section 301 of the Immigration Act of 1990, referred to in subsec. (a)(6)(E)(ii), (9)(B)(iii)(III), is section 301 of
Section 112 of the Immigration Act of 1990, referred to in subsec. (a)(6)(E)(ii), is section 112 of
The Social Security Act, referred to in subsec. (m)(6)(B), is act Aug. 14, 1935, ch. 531,
Codification
Subsec. (n)(2)(G) of this section is omitted to reflect the termination of amendment by section 413(e)(2) of
Subsection (j)(3), which required the Director of the United States Information Agency to transmit an annual report to Congress on aliens submitting affidavits described in subsection (j)(1)(E) of this section, terminated, effective May 15, 2000, pursuant to section 3003 of
Amendments
2003—Subsec. (d)(13).
Subsec. (d)(13)(A).
Subsec. (d)(13)(B)(i).
Subsec. (d)(13)(B)(ii).
Subsec. (d)(14).
Subsec. (p).
Subsec. (p)(1).
Subsec. (s).
Subsec. (t).
2002—Subsec. (a)(4)(C)(ii).
Subsec. (e).
2001—Subsec. (a)(2)(I).
Subsec. (a)(3)(B)(i)(II).
Subsec. (a)(3)(B)(i)(IV).
Subsec. (a)(3)(B)(i)(V).
Subsec. (a)(3)(B)(i)(VI), (VII).
Subsec. (a)(3)(B)(ii).
Subsec. (a)(3)(B)(iii).
Subsec. (a)(3)(B)(iii)(V)(b).
Subsec. (a)(3)(B)(iv).
"(I) The preparation or planning of a terrorist activity.
"(II) The gathering of information on potential targets for terrorist activity.
"(III) The providing of any type of material support, including a safe house, transportation, communications, funds, false documentation or identification, weapons, explosives, or training, to any individual the actor knows or has reason to believe has committed or plans to commit a terrorist activity.
"(IV) The soliciting of funds or other things of value for terrorist activity or for any terrorist organization.
"(V) The solicitation of any individual for membership in a terrorist organization, terrorist government, or to engage in a terrorist activity."
Subsec. (a)(3)(B)(v).
Subsec. (a)(3)(B)(vi).
Subsec. (a)(3)(F).
2000—Subsec. (a)(2)(H).
Subsec. (a)(5)(A)(iv).
Subsec. (a)(6)(C)(ii).
Subsec. (a)(7)(B)(iv).
Subsec. (a)(9)(C)(ii).
Subsec. (a)(10)(D).
Subsec. (d)(13).
Subsec. (g)(1)(C).
Subsec. (h)(1)(C).
Subsec. (i)(1).
Subsec. (n)(1)(E)(ii).
Subsec. (p).
1999—Subsec. (a)(2)(C).
Subsec. (a)(5)(C).
Subsec. (m).
Subsec. (r).
1998—Subsec. (a)(2)(G).
Subsec. (a)(10)(C)(ii), (iii).
Subsec. (n)(1).
Subsec. (n)(1)(A)(i).
Subsec. (n)(1)(C)(ii).
Subsec. (n)(1)(E) to (G).
Subsec. (n)(2)(A).
Subsec. (n)(2)(C).
"(i) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate, and
"(ii) the Attorney General shall not approve petitions filed with respect to that employer under
Subsec. (n)(2)(E).
Subsec. (n)(2)(F).
Subsec. (n)(2)(G).
Subsec. (n)(2)(H).
Subsec. (n)(3), (4).
Subsec. (n)(5).
Subsec. (p).
Subsec. (q).
1997—Subsec. (a)(1)(A)(ii).
Subsec. (a)(1)(C).
1996—
Subsec. (a).
Subsec. (a)(1)(A)(ii) to (iv).
Subsec. (a)(2)(B).
Subsec. (a)(2)(D)(i), (ii).
Subsec. (a)(3)(B)(i)(I).
Subsec. (a)(3)(B)(i)(II).
Subsec. (a)(3)(B)(i)(III).
Subsec. (a)(3)(B)(i)(IV).
Subsec. (a)(3)(B)(i)(V).
Subsec. (a)(3)(B)(iii)(III).
Subsec. (a)(3)(B)(iv).
Subsec. (a)(4).
Subsec. (a)(5)(A)(iii).
Subsec. (a)(5)(C).
Subsec. (a)(5)(D).
Subsec. (a)(6)(A).
Subsec. (a)(6)(B).
"(i) has been arrested and deported,
"(ii) has fallen into distress and has been removed pursuant to this chapter or any prior Act,
"(iii) has been removed as an alien enemy, or
"(iv) has been removed at Government expense in lieu of deportation pursuant to
and (a) who seeks admission within 5 years of the date of such deportation or removal, or (b) who seeks admission within 20 years in the case of an alien convicted of an aggravated felony, is excludable, unless before the date of the alien's embarkation or reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory the Attorney General has consented to the alien's applying or reapplying for admission."
Subsec. (a)(6)(C)(i).
Subsec. (a)(6)(C)(ii), (iii).
Subsec. (a)(6)(F).
Subsec. (a)(6)(G).
Subsec. (a)(9).
Subsec. (a)(10).
Subsec. (a)(10)(B).
Subsec. (a)(10)(D).
Subsec. (a)(10)(E).
Subsec. (b).
Subsec. (c).
Subsec. (d)(1).
Subsec. (d)(3).
Subsec. (d)(4).
Subsec. (d)(5)(A).
Subsec. (d)(7).
Subsec. (d)(11).
Subsec. (d)(12).
Subsec. (e).
Subsec. (f).
Subsec. (g).
"(2) subsection (a)(1)(A)(ii) of this section in the case of any alien,
in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in his discretion after consultation with the Secretary of Health and Human Services, may by regulation prescribe."
Subsec. (h).
Subsec. (h)(1)(A)(i).
Subsec. (h)(1)(B).
Subsec. (i).
"(1) in the case of an immigrant who is the spouse, parent, or son or daughter of a United States citizen or of an immigrant lawfully admitted for permanent residence, or
"(2) if the fraud or misrepresentation occurred at least 10 years before the date of the immigrant's application for a visa, entry, or adjustment of status and it is established to the satisfaction of the Attorney General that the admission to the United States of such immigrant would not be contrary to the national welfare, safety, or security of the United States."
Subsec. (j)(1)(D).
Subsec. (j)(1)(D)(ii).
Subsec. (k).
Subsec. (l)(2)(B).
1994—Subsec. (a)(2)(A)(i)(I).
Subsec. (a)(2)(A)(i)(II).
Subsec. (a)(5)(C).
Subsec. (d)(1).
Subsec. (d)(11).
Subsec. (e).
Subsec. (h).
Subsec. (n)(1)(A)(i).
Subsec. (o).
"(1) the alien was maintaining a lawful nonimmigrant status at the time of such departure, or
"(2) the alien is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under
"(A) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under
"(B) 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
"(C) applied for benefits under section 301(a) of the Immigration Act of 1990."
See Effective and Termination Dates of 1994 Amendments note below.
1993—Subsec. (a)(1)(A)(i).
1991—Subsec. (a)(1)(A)(ii)(II).
Subsec. (a)(3)(A)(i).
Subsec. (a)(3)(B)(iii)(III).
Subsec. (a)(3)(C)(iv).
Subsec. (a)(3)(D)(iv).
Subsec. (a)(5).
Subsec. (a)(5)(C).
Subsec. (a)(6)(B).
Subsec. (a)(6)(E)(ii), (iii).
Subsec. (a)(8)(B).
Subsec. (a)(9)(C)(i).
Subsec. (a)(9)(C)(ii).
Subsec. (a)(17).
Subsec. (c).
Subsec. (d)(3).
Subsec. (d)(11).
Subsec. (g)(1).
Subsec. (h).
Subsec. (h)(1).
Subsec. (i).
Subsec. (j)(1)(D).
Subsec. (j)(2).
Subsec. (j)(3).
Subsec. (m)(2)(A).
Subsec. (n)(1).
Subsec. (n)(1)(A)(i).
Subsec. (n)(1)(A)(ii).
Subsec. (n)(1)(D).
Subsec. (n)(2)(C).
Subsec. (n)(2)(D).
1990—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d)(1), (2).
Subsec. (d)(3).
Subsec. (d)(4).
Subsec. (d)(5)(A).
Subsec. (d)(6).
Subsec. (d)(7).
Subsec. (d)(8).
Subsec. (d)(9), (10).
Subsec. (d)(11).
Subsec. (g).
Subsec. (h).
Subsec. (i).
Subsec. (k).
Subsec. (l).
Subsec. (m)(2)(A).
Subsec. (n).
1989—Subsec. (m).
1988—Subsec. (a)(17).
Subsec. (a)(19).
Subsec. (a)(32).
Subsec. (d)(4).
Subsec. (e).
Subsec. (g).
Subsec. (h).
Subsec. (i).
Subsec. (l).
1987—Subsec. (a)(23).
1986—Subsec. (a)(19).
Subsec. (a)(23).
Subsec. (a)(24).
Subsec. (d)(4).
Subsec. (i).
Subsec. (l).
1984—Subsec. (a)(9).
Subsec. (l).
1981—Subsec. (a)(17).
Subsec. (a)(32).
Subsec. (d)(6).
Subsec. (h).
Subsec. (j)(1).
Subsec. (j)(1)(A).
Subsec. (j)(1)(B).
Subsec. (j)(1)(C).
Subsec. (j)(1)(D).
Subsec. (j)(1)(E).
Subsec. (j)(2)(A).
Subsec. (j)(2)(B).
Subsec. (j)(2)(C).
Subsec. (j)(3).
Subsec. (k).
1980—Subsec. (a)(14), (32).
Subsec. (d)(5).
Subsec. (j)(2)(A).
1979—Subsec. (d)(9), (10).
1978—Subsec. (a)(33).
Subsec. (d)(3).
1977—Subsec. (a)(32).
Subsec. (j)(1)(B).
Subsec. (j)(1)(C).
Subsec. (j)(1)(D).
Subsec. (j)(2)(A).
1976—Subsec. (a)(14).
Subsec. (a)(24).
Subsec. (a)(32).
Subsec. (e).
Subsec. (j).
1970—Subsec. (e).
1965—Subsec. (a)(1).
Subsec. (a)(4).
Subsec. (a)(14).
Subsec. (a)(20).
Subsec. (a)(21).
Subsec. (a)(24).
Subsec. (g).
Subsecs. (h), (i).
1961—Subsec. (a)(6).
Subsec. (a)(9).
Subsecs. (e), (f).
Subsecs. (g) to (i).
1960—Subsec. (a).
1959—Subsec. (d).
1958—Subsec. (d)(7).
1956—Subsec. (a)(23). Act July 18, 1956, included conspiracy to violate a narcotic law, and the illicit possession of narcotics, as additional grounds for exclusion.
Change of Name
Committee on Foreign Affairs of House of Representatives treated as referring to Committee on International Relations of House of Representatives by section 1(a) of
Effective and Termination Dates of 2003 Amendment
Amendment by
Effective Date of 2002 Amendments
"(1) the sponsored alien—
"(A) requests the Attorney General to reinstate the classification petition that was filed with respect to the alien by the deceased and approved under section 204 of the Immigration and Nationality Act (
"(B) demonstrates that he or she is able to satisfy the requirement of section 212(a)(4)(C)(ii) of such Act (
"(2) the Attorney General reinstates such petition after making the determination described in section 213A(f)(5)(B)(ii) of such Act [
Effective Date of 2001 Amendment
"(1)
"(A) actions taken by an alien before, on, or after such date; and
"(B) all aliens, without regard to the date of entry or attempted entry into the United States—
"(i) in removal proceedings on or after such date (except for proceedings in which there has been a final administrative decision before such date); or
"(ii) seeking admission to the United States on or after such date.
"(2)
"(3)
"(A)
"(B)
"(i) described in subclause (IV)(bb), (V)(bb), or (VI)(cc) of section 212(a)(3)(B)(iv) of such Act (as so amended) with respect to a terrorist organization at any time when such organization was designated by the Secretary of State under section 219 of such Act or otherwise designated under section 212(a)(3)(B)(vi)(II) of such Act (as so amended); or
"(ii) described in subclause (IV)(cc), (V)(cc), or (VI)(dd) of section 212(a)(3)(B)(iv) of such Act (as so amended) with respect to a terrorist organization described in section 212(a)(3)(B)(vi)(III) of such Act (as so amended).
"(4)
[Another section 411(c) of
Effective Date of 2000 Amendment
Effective Date of 1999 Amendment
Effective and Termination Dates of 1998 Amendments
"(1) for applications filed on or after the date of the enactment of this Act [Oct. 21, 1998]; and
"(2) for applications filed before such date, but only to the extent that the computation is subject to an administrative or judicial determination that is not final as of such date."
Effective Date of 1996 Amendments
Section 301(b)(3) of title III of div. C of
Section 301(c)(2) of title III of div. C of
Section 306(d) of div. C of
Amendment by sections 301(b)(1), (c)(1), 304(b), 305(c), 306(d), and 308(c)(2)(B), (d)(1), (e)(1)(B), (C), (2)(A), (6), (f)(1)(C)–(F), (3)(A), (g)(1), (4)(B), (10)(A), (H) of div. C of
Amendment by section 322(a) of
Section 341(c) of div. C of
Section 342(b) of div. C of
Section 344(c) of div. C of
Section 346(b) of div. C of
Section 347(c) of div. C of
Section 348(b) of div. C of
Section 351(c) of div. C of
Section 352(b) of div. C of
Section 358 of title III of div. C of
Section 531(b) of div. C of
Effective and Termination Dates of 1994 Amendments
Section 203(c) of
Amendment by section 219(e) of
Section 219(z) of
Section 220(c) of
Section 506(c) of
Effective Date of 1993 Amendment
Section 2007(b) of
Effective Date of 1991 Amendment
Amendment by sections 302(e)(6), 303(a)(5)(B), (6), (7)(B), 306(a)(10), (12), 307(a)–(g) of
Section 302(e)(9) of
Effective Date of 1990 Amendment
Amendment by section 162(e)(1) of
Amendment by section 162(f)(2)(B) of
Section 202(c) of
Amendment by section 205(c)(3) of
Section 511(b) of
Section 514(b) of
Amendment by section 601(a), (b), and (d) of
Effective Date of 1989 Amendment
Section 3(d) of
Effective Date of 1988 Amendments
Section 7349(b) of
Section 3 of
Section 7(d) of
Amendment by section 8(f) of
Effective Date of 1986 Amendments
Amendment by
Section 6(c), formerly 6(b), of
Section 1751(c) of
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1981 Amendment
Section 5(c) of
Amendment by
Effective Date of 1980 Amendment
Amendment by section 203(d) of
Effective Date of 1979 Amendment
Amendment by
Section 3201(d)(2) of
Effective Date of 1976 Amendments
Amendment by
Amendment by section 601(d) of
Section 601(f) of
Effective Date of 1965 Amendment
For effective date of amendment by
Effective Date of 1956 Amendment
Amendment by act July 18, 1956, effective July 19, 1956, see section 401 of act July 18, 1956.
Construction of 1990 Amendment
Section 302(e)(6) of
Regulations
Section 124(b)(2) of div. C of
Transfer of Functions
United States Information Agency (other than Broadcasting Board of Governors and International Broadcasting Bureau) abolished and functions transferred to Secretary of State, see
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Money Laundering Watchlist
Recommendations for Alternative Remedy for Nursing Shortage
"(1) A program to eliminate the dependence of facilities described in section 212(m)(6) of the Immigration and Nationality Act [
"(2) A method of enforcing the requirements imposed on facilities under sections 101(a)(15)(H)(i)(c) and 212(m) of the Immigration and Nationality Act [
Issuance of Certified Statements
Extension of Authorized Period of Stay for Certain Nurses
"(a)
"(1)
"(2)
"(A) who entered the United States as a nonimmigrant described in section 101(a)(15)(H)(i)(a) of the Immigration and Nationality Act [
"(B) who was within the United States on or after September 1, 1995, and who is within the United States on the date of the enactment of this Act [Oct. 11, 1996]; and
"(C) whose period of authorized stay has expired or would expire before September 30, 1997 but for the provisions of this section.
"(3)
"(b)
"(c)
"(d)
References to Inadmissible Deemed To Include Excludable and References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of carrying out this chapter, any reference in subsec. (a)(1)(A) of this section to "inadmissible" is deemed to include a reference to "excludable", and any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d) of
Annual Report on Aliens Paroled Into United States
Section 602(b) of div. C of
Assistance to Drug Traffickers
Processing of Visas for Admission to United States
"(1)(A) Beginning 24 months after the date of the enactment of this Act [Apr. 30, 1994], whenever a United States consular officer issues a visa for admission to the United States, that official shall certify, in writing, that a check of the Automated Visa Lookout System, or any other system or list which maintains information about the excludability of aliens under the Immigration and Nationality Act [
"(B) If, at the time an alien applies for an immigrant or nonimmigrant visa, the alien's name is included in the Department of State's visa lookout system and the consular officer to whom the application is made fails to follow the procedures in processing the application required by the inclusion of the alien's name in such system, the consular officer's failure shall be made a matter of record and shall be considered as a serious negative factor in the officer's annual performance evaluation.
"(2) If an alien to whom a visa was issued as a result of a failure described in paragraph (1)(B) is admitted to the United States and there is thereafter probable cause to believe that the alien was a participant in a terrorist act causing serious injury, loss of life, or significant destruction of property in the United States, the Secretary of State shall convene an Accountability Review Board under the authority of title III of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 [
Access to Interstate Identification Index of National Crime Information Center; Fingerprint Checks
"(d)
"(1) Subject to paragraphs (2) and (3), the Department of State Consolidated Immigrant Visa Processing Center shall have on-line access, without payment of any fee or charge, to the Interstate Identification Index of the National Crime Information Center solely for the purpose of determining whether a visa applicant has a criminal history record indexed in such Index. Such access does not entitle the Department of State to obtain the full content of automated records through the Interstate Identification Index. To obtain the full content of a criminal history record, the Department shall submit a separate request to the Identification Records Section of the Federal Bureau of Investigation, and shall pay the appropriate fee as provided for in the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990 (
"(2) The Department of State shall be responsible for all one-time start-up and recurring incremental non-personnel costs of establishing and maintaining the access authorized in paragraph (1).
"(3) The individual primarily responsible for the day-to-day implementation of paragraph (1) shall be an employee of the Federal Bureau of Investigation selected by the Department of State, and detailed to the Department on a fully reimbursable basis.
"(e)
"(1) Effective not later than March 31, 1995, the Secretary of State shall in the ten countries with the highest volume of immigrant visa issuance for the most recent fiscal year for which data are available require the fingerprinting of applicants over sixteen years of age for immigrant visas. The Department of State shall submit records of such fingerprints to the Federal Bureau of Investigation in order to ascertain whether such applicants previously have been convicted of a felony under State or Federal law in the United States, and shall pay all appropriate fees.
"(2) The Secretary shall prescribe and publish such regulations as may be necessary to implement the requirements of this subsection, and to avoid undue processing costs and delays for eligible immigrants and the United States Government.
"(f) Not later than December 31, 1996, the Secretary of State and the Director of the Federal Bureau of Investigation shall jointly submit to the Committee on Foreign Affairs [now Committee on International Relations] and the Committee on the Judiciary of the House of Representatives, and the Committee on Foreign Relations and the Committee on the Judiciary of the Senate, a report on the effectiveness of the procedures authorized in subsections (d) and (e).
"(g) Subsections (d) and (e) shall cease to have effect after May 1, 1998."
Visa Lookout Systems
"(a)
"(b)
"(1) correct the Automated Visa Lookout System, or any other system or list which maintains information about the inadmissibility of aliens under the Immigration and Nationality Act, by deleting the name of any alien not inadmissible under the Immigration and Nationality Act; and
"(2) report to the Congress concerning the completion of such correction process.
"(c)
"(1) Not later than 90 days after the date of enactment of this Act [Oct. 28, 1991], the Secretary of State, in coordination with the heads of other appropriate Government agencies, shall prepare and submit to the appropriate congressional committees, a plan which sets forth the manner in which the Department of State will correct the Automated Visa Lookout System, and any other system or list as set forth in subsection (b).
"(2) Not later than 1 year after the date of enactment of this Act [Oct. 28, 1991], the Secretary of State shall report to the appropriate congressional committees on the progress made toward completing the correction of lists as set forth in subsection (b).
"(d)
"(e)
"(1) The Secretary may add or retain in such system or list the names of aliens who are not inadmissible only if they are included for otherwise authorized law enforcement purposes or other lawful purposes of the Department of State. A name included for other lawful purposes under this paragraph shall include a notation which clearly and distinctly indicates that such person is not presently inadmissible. The Secretary of State shall adopt procedures to ensure that visas are not denied to such individuals for any reason not set forth in the Immigration and Nationality Act [
"(2) The Secretary shall publish in the Federal Register regulations and standards concerning maintenance and use by the Department of State of systems and lists for purposes described in paragraph (1).
"(3) Nothing in this section may be construed as creating new authority or expanding any existing authority for any activity not otherwise authorized by law.
"(f)
Changes in Labor Certification Process
Section 122 of
"[(a) Repealed.
"(b)
"(1) no certification may be made unless the applicant for certification has, at the time of filing the application, provided notice of the filing (A) to the bargaining representative (if any) of the employer's employees in the occupational classification and area for which aliens are sought, or (B) if there is no such bargaining representative, to employees employed at the facility through posting in conspicuous locations; and
"(2) any person may submit documentary evidence bearing on the application for certification (such as information on available workers, information on wages and working conditions, and information on the employer's failure to meet terms and conditions with respect to the employment of alien workers and co-workers)."
Review of Exclusion Lists
Section 601(c) of
"(1) whose name is in such system, and
"(2) who either (A) applies for admission after the effective date of the amendments made by this section [see Effective Date of 1990 Amendment note above], or (B) requests (in writing to a local consular office after such date) a review, without seeking admission, of the alien's continued inadmissibility under the Immigration and Nationality Act [
if the alien is no longer inadmissible because of an amendment made by this section the alien's name shall be removed from such books and system and the alien shall be informed of such removal and if the alien continues to be inadmissible the alien shall be informed of such determination."
Implementation of Requirements for Admission of Nonimmigrant Nurses During 5-Year Period
Section 3(c) of
"(1) first publish final regulations to carry out section 212(m) of the Immigration and Nationality Act [
"(2) provide for the appointment (by January 1, 1991) of an advisory group, including representatives of the Secretary, the Secretary of Health and Human Services, the Attorney General, hospitals, and labor organizations representing registered nurses, to advise the Secretary—
"(A) concerning the impact of this section on the nursing shortage,
"(B) on programs that medical institutions may implement to recruit and retain registered nurses who are United States citizens or immigrants who are authorized to perform nursing services,
"(C) on the formulation of State recruitment and retention plans under section 212(m)(3) of the Immigration and Nationality Act, and
"(D) on the advisability of extending the amendments made by this section [amending
Prohibition on Exclusion or Deportation of Aliens on Certain Grounds
Section 901 of
Regulations Governing Admission, Detention, and Travel of Nonimmigrant Aliens in Guam Pursuant to Visa Waivers
Section 14(b) of
Annual Report to Congress on Implementation of Provisions Authorizing Waiver of Certain Requirements for Nonimmigrant Visitors to Guam
Section 14(c) of
Sharing of Information Concerning Drug Traffickers
"(a)
"(1) the Department of State shall cooperate with United States law enforcement agencies, including the Drug Enforcement Administration and the United States Customs Service, in establishing a comprehensive information system on all drug arrests of foreign nationals in the United States, so that that information may be communicated to the appropriate United States embassies; and
"(2) the National Drug Enforcement Policy Board shall agree on uniform guidelines which would permit the sharing of information on foreign drug traffickers.
"(b)
[For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see
Refugees From Democratic Kampuchea (Cambodia); Temporary Parole Into United States for Fiscal Years 1979 and 1980
Retroactive Adjustment of Refugee Status
Report by Attorney General to Congressional Committees on Admission of Certain Excludable Aliens
National Board of Medical Examiners Examination
Section 602(a), (b) of
Labor Certification for Graduates of Foreign Medical Schools; Development of Data by Secretary of Health, Education, and Welfare Not Later Than Oct. 12, 1977
Section 906 of
Resettlement of Refugee-Escapee; Reports; Formula; Termination Date; Persons Difficult To Resettle; Creation of Record of Admission for Permanent Residence
"[
"[
"
"
* * * * *
"[
Creation of Record of Admission for Permanent Residence in the Case of Certain Hungarian Refugees
"
"
Proc. No. 4865. High Seas Interdiction of Illegal Aliens
Proc. No. 4865, Sept. 29, 1981, 46 F.R. 48107, provided:
The ongoing migration of persons to the United States in violation of our laws is a serious national problem detrimental to the interests of the United States. A particularly difficult aspect of the problem is the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States. These arrivals have severely strained the law enforcement resources of the Immigration and Naturalization Service and have threatened the welfare and safety of communities in that region.
As a result of our discussions with the Governments of affected foreign countries and with agencies of the Executive Branch of our Government, I have determined that new and effective measures to curtail these unlawful arrivals are necessary. In this regard, I have determined that international cooperation to intercept vessels trafficking in illegal migrants is a necessary and proper means of insuring the effective enforcement of our laws.
NOW, THEREFORE, I, RONALD REAGAN, President of the United States of America, by the authority vested in me by the Constitution and the statutes of the United States, including Sections 212(f) and 215(a)(1) of the Immigration and Nationality Act, as amended (
The entry of undocumented aliens from the high seas is hereby suspended and shall be prevented by the interdiction of certain vessels carrying such aliens.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of September, in the year of our Lord nineteen hundred and eighty-one, and of the Independence of the United States of America the two hundred and sixth.
Ronald Reagan.
Proc. No. 7750. To Suspend Entry as Immigrants or Nonimmigrants of Persons Engaged in or Benefiting from Corruption
Proc. No. 7750, Jan. 12, 2004, 69 F.R. 2287, provided:
In light of the importance of legitimate and transparent public institutions to world stability, peace, and development, and the serious negative effects that corruption of public institutions has on the United States efforts to promote security and to strengthen democratic institutions and free market systems, and in light of the importance to the United States and the international community of fighting corruption, as evidenced by the Third Global Forum on Fighting Corruption and Safeguarding Integrity and other intergovernmental efforts, I have determined that it is in the interests of the United States to take action to restrict the international travel and to suspend the entry into the United States, as immigrants or nonimmigrants, of certain persons who have committed, participated in, or are beneficiaries of corruption in the performance of public functions where that corruption has serious adverse effects on international activity of U.S. businesses, U.S. foreign assistance goals, the security of the United States against transnational crime and terrorism, or the stability of democratic institutions and nations.
NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by the authority vested in me by the Constitution and the laws of the United States, including section 212(f) of the Immigration and Nationality Act of 1952,
I therefore hereby proclaim that:
(a) Public officials or former public officials whose solicitation or acceptance of any article of monetary value, or other benefit, in exchange for any act or omission in the performance of their public functions has or had serious adverse effects on the national interests of the United States.
(b) Persons whose provision of or offer to provide any article of monetary value or other benefit to any public official in exchange for any act or omission in the performance of such official's public functions has or had serious adverse effects on the national interests of the United States.
(c) Public officials or former public officials whose misappropriation of public funds or interference with the judicial, electoral, or other public processes has or had serious adverse effects on the national interests of the United States.
(d) The spouses, children, and dependent household members of persons described in paragraphs (a), (b), and (c) above, who are beneficiaries of any articles of monetary value or other benefits obtained by such persons.
IN WITNESS WHEREOF, I have hereunto set my hand this twelfth day of January, in the year of our Lord two thousand four, and of the Independence of the United States of America the two hundred and twenty-eighth.
George W. Bush.
Executive Order No. 12324
Ex. Ord. No. 12324, Sept. 29, 1981, 46 F.R. 48109, which directed Secretary of State to enter into cooperative arrangements with foreign governments for purpose of preventing illegal migration to United States by sea, directed Secretary of the Department in which the Coast Guard is operating to issue appropriate instructions to Coast Guard to enforce suspension of entry of undocumented aliens and interdiction of any defined vessel carrying such aliens, and directed Attorney General to ensure fair enforcement of immigration laws and strict observance of international obligations of United States concerning those who genuinely flee persecution in their homeland, was revoked and replaced by Ex. Ord. No. 12807, §4, May 24, 1992, 57 F.R. 23134, set out below.
Ex. Ord. No. 12807. Interdiction of Illegal Aliens
Ex. Ord. No. 12807, May 24, 1992, 57 F.R. 23133, as amended by Ex. Ord. No. 13286, §30, Feb. 28, 2003, 68 F.R. 10625, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a)(1) of the Immigration and Nationality Act, as amended (
(1) The President has authority to suspend the entry of aliens coming by sea to the United States without necessary documentation, to establish reasonable rules and regulations regarding, and other limitations on, the entry or attempted entry of aliens into the United States, and to repatriate aliens interdicted beyond the territorial sea of the United States;
(2) The international legal obligations of the United States under the United Nations Protocol Relating to the Status of Refugees (U.S. T.I.A.S. 6577; 19 U.S.T. 6223) to apply Article 33 of the United Nations Convention Relating to the Status of Refugees do not extend to persons located outside the territory of the United States;
(3) Proclamation No. 4865 [set out above] suspends the entry of all undocumented aliens into the United States by the high seas; and
(4) There continues to be a serious problem of persons attempting to come to the United States by sea without necessary documentation and otherwise illegally;
I, GEORGE BUSH, President of the United States of America, hereby order as follows:
(b) Those instructions shall apply to any of the following defined vessels:
(1) Vessels of the United States, meaning any vessel documented or numbered pursuant to the laws of the United States, or owned in whole or in part by the United States, a citizen of the United States, or a corporation incorporated under the laws of the United States or any State, Territory, District, Commonwealth, or possession thereof, unless the vessel has been granted nationality by a foreign nation in accord with Article 5 of the Convention on the High Seas of 1958 (U.S. T.I.A.S. 5200; 13 U.S.T. 2312).
(2) Vessels without nationality or vessels assimilated to vessels without nationality in accordance with paragraph (2) of Article 6 of the Convention on the High Seas of 1958 (U.S. T.I.A.S. 5200; 13 U.S.T. 2312).
(3) Vessels of foreign nations with whom we have arrangements authorizing the United States to stop and board such vessels.
(c) Those instructions to the Coast Guard shall include appropriate directives providing for the Coast Guard:
(1) To stop and board defined vessels, when there is reason to believe that such vessels are engaged in the irregular transportation of persons or violations of United States law or the law of a country with which the United States has an arrangement authorizing such action.
(2) To make inquiries of those on board, examine documents and take such actions as are necessary to carry out this order.
(3) To return the vessel and its passengers to the country from which it came, or to another country, when there is reason to believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign country with which we have an arrangement to assist; provided, however, that the Secretary of Homeland Security, in his unreviewable discretion, may decide that a person who is a refugee will not be returned without his consent.
(d) These actions, pursuant to this section, are authorized to be undertaken only beyond the territorial sea of the United States.
George Bush.
Ex. Ord. No. 13276. Delegation of Responsibilities Concerning Undocumented Aliens Interdicted or Intercepted in the Caribbean Region
Ex. Ord. No. 13276, Nov. 15, 2002, 67 F.R. 69985, as amended by Ex. Ord. No. 13286, §1, Feb. 28, 2003, 68 F.R. 10619, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a)(1) of the Immigration and Nationality Act, as amended (
(a)(i) The Secretary of Homeland Security may maintain custody, at any location he deems appropriate, of any undocumented aliens he has reason to believe are seeking to enter the United States and who are interdicted or intercepted in the Caribbean region. In this regard, the Secretary of Homeland Security shall provide and operate a facility, or facilities, to house and provide for the needs of any such aliens. Such a facility may be located at Guantanamo Bay Naval Base or any other appropriate location.
(ii) The Secretary of Homeland Security may conduct any screening of such aliens that he deems appropriate, including screening to determine whether such aliens should be returned to their country of origin or transit, or whether they are persons in need of protection who should not be returned without their consent. If the Secretary of Homeland Security institutes such screening, then until a determination is made, the Secretary of Homeland Security shall provide for the custody, care, safety, transportation, and other needs of the aliens. The Secretary of Homeland Security shall continue to provide for the custody, care, safety, transportation, and other needs of aliens who are determined not to be persons in need of protection until such time as they are returned to their country of origin or transit.
(b) The Secretary of State shall provide for the custody, care, safety, transportation, and other needs of undocumented aliens interdicted or intercepted in the Caribbean region whom the Secretary of Homeland Security has identified as persons in need of protection. The Secretary of State shall provide for and execute a process for resettling such persons in need of protection, as appropriate, in countries other than their country of origin, and shall also undertake such diplomatic efforts as may be necessary to address the problem of illegal migration of aliens in the Caribbean region and to facilitate the return of those aliens who are determined not to be persons in need of protection.
(c)(i) The Secretary of Defense shall make available to the Secretary of Homeland Security and the Secretary of State, for the housing and care of any undocumented aliens interdicted or intercepted in the Caribbean region and taken into their custody, any facilities at Guantanamo Bay Naval Base that are excess to current military needs and the provision of which does not interfere with the operation and security of the base. The Secretary of Defense shall be responsible for providing access to such facilities and perimeter security. The Secretary of Homeland Security and the Secretary of State, respectively, shall be responsible for reimbursement for necessary supporting utilities.
(ii) In the event of a mass migration in the Caribbean region, the Secretary of Defense shall provide support to the Secretary of Homeland Security and the Secretary of State in carrying out the duties described in paragraphs (a) and (b) of this section regarding the custody, care, safety, transportation, and other needs of the aliens, and shall assume primary responsibility for these duties on a nonreimbursable basis as necessary to contain the threat to national security posed by the migration. The Secretary of Defense shall also provide support to the Coast Guard in carrying out the duties described in Executive Order 12807 of May 24, 1992 [set out above], regarding interdiction of migrants.
(a) Nothing in this order shall be construed to impair or otherwise affect the authorities and responsibilities set forth in Executive Order 12807 of May 24, 1992 [set out above].
(b) Nothing in this order shall be construed to make reviewable in any judicial or administrative proceeding, or otherwise, any action, omission, or matter that otherwise would not be reviewable.
(c) This order is intended only to improve the management of the executive branch. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity or otherwise against the United States, its departments, agencies, entities, instrumentalities, officers, employees, or any other person.
(d) Any agency assigned any duties by this order may use the provisions of the Economy Act,
(e) This order shall not be construed to require any procedure to determine whether a person is a refugee or otherwise in need of protection.
George W. Bush.
Delegation of Authority Under Sections 1182(f) and 1185(a)(1) of This Title
Memorandum of President of the United States, Sept. 24, 1999, 64 F.R. 55809, provided:
Memorandum for the Attorney General
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a)(1) of the Immigration and Nationality Act, as amended (
(a) Maintain custody, at any location she deems appropriate, and conduct any screening she deems appropriate in her unreviewable discretion, of any undocumented person she has reason to believe is seeking to enter the United States and who is encountered in a vessel interdicted on the high seas through December 31, 2000; and
(b) Undertake any other appropriate actions with respect to such aliens permitted by law.
With respect to the functions delegated by this order, all actions taken after April 16, 1999, for or on behalf of the President that would have been valid if taken pursuant to this memorandum are ratified.
This memorandum is not intended to create, and should not be construed to create, any right or benefit, substantive or procedural, legally enforceable by any party against the United States, its agencies or instrumentalities, officers, employees, or any other person, or to require any procedures to determine whether a person is a refugee.
You are authorized and directed to publish this memorandum in the Federal Register.
William J. Clinton.
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by a comma.
2 See Reference in Text note below.
3 So in original. Probably should be a reference to
4 So in original. Probably should be preceded by "ineligible for".
6 So in original. Probably should be "(10)(E))".
§§1182a to 1182c. Repealed. Pub. L. 87–301, §24(a)(1), (3), Sept. 26, 1961, 75 Stat. 657
Section 1182a, act Sept. 3, 1954, ch. 1254, §4,
Section 1182b,
Section 1182c,
§1182d. Denial of visas to confiscators of American property
(a) Denial of visas
Except as otherwise provided in
(1) through the abuse of position, including a governmental or political party position, converts or has converted for personal gain real property that has been confiscated or expropriated, a claim to which is owned by a national of the United States, or who is complicit in such a conversion; or
(2) induces any of the actions or omissions described in paragraph (1) by any person.
(b) Exceptions
Subsection (a) of this section shall not apply to—
(1) any country established by international mandate through the United Nations; or
(2) any territory recognized by the United States Government to be in dispute.
(c) Reporting requirement
Not later than 6 months after October 21, 1998, and every 12 months thereafter, the Secretary of State shall submit to the Speaker of the House of Representatives and to the chairman of the Committee on Foreign Relations of the Senate a report, including—
(1) a list of aliens who have been denied a visa under this subsection; and
(2) a list of aliens who could have been denied a visa under subsection (a) of this section but were issued a visa and an explanation as to why each such visa was issued.
(
Codification
Section was enacted as part of the Foreign Relations Authorization Act, Fiscal Years 1998 and 1999, and also as part of the Foreign Affairs Reform and Restructuring Act of 1998, and the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, and not as part of the Immigration and Nationality Act which comprises this chapter.
§1182e. Denial of entry into United States of foreign nationals engaged in establishment or enforcement of forced abortion or sterilization policy
(a) Denial of entry
Notwithstanding any other provision of law, the Secretary of State may not issue any visa to, and the Attorney General may not admit to the United States, any foreign national whom the Secretary finds, based on credible and specific information, to have been directly involved in the establishment or enforcement of population control policies forcing a woman to undergo an abortion against her free choice or forcing a man or woman to undergo sterilization against his or her free choice, unless the Secretary has substantial grounds for believing that the foreign national has discontinued his or her involvement with, and support for, such policies.
(b) Exceptions
The prohibitions in subsection (a) of this section shall not apply in the case of a foreign national who is a head of state, head of government, or cabinet level minister.
(c) Waiver
The Secretary of State may waive the prohibitions in subsection (a) of this section with respect to a foreign national if the Secretary—
(1) determines that it is important to the national interest of the United States to do so; and
(2) provides written notification to the appropriate congressional committees containing a justification for the waiver.
(
Codification
Section was enacted as part of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in title 6 section 236.
§1182f. Denial of entry into United States of Chinese and other nationals engaged in coerced organ or bodily tissue transplantation
(a) Denial of entry
Notwithstanding any other provision of law and except as provided in subsection (b) of this section, the Secretary shall direct consular officers not to issue a visa to any person whom the Secretary finds, based on credible and specific information, to have been directly involved with the coercive transplantation of human organs or bodily tissue, unless the Secretary has substantial grounds for believing that the foreign national has discontinued his or her involvement with, and support for, such practices.
(b) Exception
The prohibitions in subsection (a) of this section do not apply to an applicant who is a head of state, head of government, or cabinet-level minister.
(c) Waiver
The Secretary may waive the prohibitions in subsection (a) of this section with respect to a foreign national if the Secretary—
(1) determines that it is important to the national interest of the United States to do so; and
(2) not later than 30 days after the issuance of a visa, provides written notification to the appropriate congressional committees containing a justification for the waiver.
(
Codification
Section was enacted as part of the Department of State Authorization Act, Fiscal Year 2003, and also as part of the Foreign Relations Authorization Act, Fiscal Year 2003, and not as part of the Immigration and Nationality Act which comprises this chapter.
Definitions
For definitions of "Secretary" and "appropriate congressional committees" as used in this section, see section 3 of
§1183. Admission of aliens on giving bond or undertaking; return upon permanent departure
An alien inadmissible under paragraph (4) of
(June 27, 1952, ch. 477, title II, ch. 2, §213,
Amendments
1996—
1990—
1970—
Effective Date of 1996 Amendment
Amendment by section 308(d)(3)(A) of
Amendment by section 564(f) of
Effective Date of 1990 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1183a. Requirements for sponsor's affidavit of support
(a) Enforceability
(1) Terms of affidavit
No affidavit of support may be accepted by the Attorney General or by any consular officer to establish that an alien is not excludable as a public charge under
(A) in which the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable;
(B) that is legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State (or any political subdivision of such State), or by any other entity that provides any means-tested public benefit (as defined in subsection (e) 1 of this section), consistent with the provisions of this section; and
(C) in which the sponsor agrees to submit to the jurisdiction of any Federal or State court for the purpose of actions brought under subsection (b)(2) of this section.
(2) Period of enforceability
An affidavit of support shall be enforceable with respect to benefits provided for an alien before the date the alien is naturalized as a citizen of the United States, or, if earlier, the termination date provided under paragraph (3).
(3) Termination of period of enforceability upon completion of required period of employment, etc.
(A) In general
An affidavit of support is not enforceable after such time as the alien (i) has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act [
(B) Qualifying quarters
For purposes of this section, in determining the number of qualifying quarters of coverage under title II of the Social Security Act [
(i) all of the qualifying quarters of coverage as defined under title II of the Social Security Act worked by a parent of such alien while the alien was under age 18, and
(ii) all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased.
No such qualifying quarter of coverage that is creditable under title II of the Social Security Act for any period beginning after December 31, 1996, may be credited to an alien under clause (i) or (ii) if the parent or spouse (as the case may be) of such alien received any Federal means-tested public benefit (as provided under
(C) Provision of information to save system
The Attorney General shall ensure that appropriate information regarding the application of this paragraph is provided to the system for alien verification of eligibility (SAVE) described in section 1137(d)(3) of the Social Security Act [
(b) Reimbursement of government expenses
(1) Request for reimbursement
(A) Requirement
Upon notification that a sponsored alien has received any means-tested public benefit, the appropriate nongovernmental entity which provided such benefit or the appropriate entity of the Federal Government, a State, or any political subdivision of a State shall request reimbursement by the sponsor in an amount which is equal to the unreimbursed costs of such benefit.
(B) Regulations
The Attorney General, in consultation with the heads of other appropriate Federal agencies, shall prescribe such regulations as may be necessary to carry out subparagraph (A).
(2) Actions to compel reimbursement
(A) In case of nonresponse
If within 45 days after a request for reimbursement under paragraph (1)(A), the appropriate entity has not received a response from the sponsor indicating a willingness to commence payment an action may be brought against the sponsor pursuant to the affidavit of support.
(B) In case of failure to pay
If the sponsor fails to abide by the repayment terms established by the appropriate entity, the entity may bring an action against the sponsor pursuant to the affidavit of support.
(C) Limitation on actions
No cause of action may be brought under this paragraph later than 10 years after the date on which the sponsored alien last received any means-tested public benefit to which the affidavit of support applies.
(3) Use of collection agencies
If the appropriate entity under paragraph (1)(A) requests reimbursement from the sponsor or brings an action against the sponsor pursuant to the affidavit of support, the appropriate entity may appoint or hire an individual or other person to act on behalf of such entity acting under the authority of law for purposes of collecting any amounts owed.
(c) Remedies
Remedies available to enforce an affidavit of support under this section include any or all of the remedies described in
(d) Notification of change of address
(1) General requirement
The sponsor shall notify the Attorney General and the State in which the sponsored alien is currently a resident within 30 days of any change of address of the sponsor during the period in which an affidavit of support is enforceable.
(2) Penalty
Any person subject to the requirement of paragraph (1) who fails to satisfy such requirement shall, after notice and opportunity to be heard, be subject to a civil penalty of—
(A) not less than $250 or more than $2,000, or
(B) if such failure occurs with knowledge that the sponsored alien has received any means-tested public benefits (other than benefits described in
The Attorney General shall enforce this paragraph under appropriate regulations.
(e) Jurisdiction
An action to enforce an affidavit of support executed under subsection (a) of this section may be brought against the sponsor in any appropriate court—
(1) by a sponsored alien, with respect to financial support; or
(2) by the appropriate entity of the Federal Government, a State or any political subdivision of a State, or by any other nongovernmental entity under subsection (b)(2) of this section, with respect to reimbursement.
(f) "Sponsor" defined
(1) In general
For purposes of this section the term "sponsor" in relation to a sponsored alien means an individual who executes an affidavit of support with respect to the sponsored alien and who—
(A) is a citizen or national of the United States or an alien who is lawfully admitted to the United States for permanent residence;
(B) is at least 18 years of age;
(C) is domiciled in any of the several States of the United States, the District of Columbia, or any territory or possession of the United States;
(D) is petitioning for the admission of the alien under
(E) demonstrates (as provided in paragraph (6)) the means to maintain an annual income equal to at least 125 percent of the Federal poverty line.
(2) Income requirement case
Such term also includes an individual who does not meet the requirement of paragraph (1)(E) but accepts joint and several liability together with an individual under paragraph (5)(A).
(3) Active duty armed services case
Such term also includes an individual who does not meet the requirement of paragraph (1)(E) but is on active duty (other than active duty for training) in the Armed Forces of the United States, is petitioning for the admission of the alien under
(4) Certain employment-based immigrants case
Such term also includes an individual—
(A) who does not meet the requirement of paragraph (1)(D), but is the relative of the sponsored alien who filed a classification petition for the sponsored alien as an employment-based immigrant under
(B)(i) who demonstrates (as provided under paragraph (6)) the means to maintain an annual income equal to at least 125 percent of the Federal poverty line, or
(ii) does not meet the requirement of paragraph (1)(E) but accepts joint and several liability together with an individual under paragraph (5)(A).
(5) Non-petitioning cases
Such term also includes an individual who does not meet the requirement of paragraph (1)(D) but who—
(A) accepts joint and several liability with a petitioning sponsor under paragraph (2) or relative of an employment-based immigrant under paragraph (4) and who demonstrates (as provided under paragraph (6)) the means to maintain an annual income equal to at least 125 percent of the Federal poverty line; or
(B) is a spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of a sponsored alien or a legal guardian of a sponsored alien, meets the requirements of paragraph (1) (other than subparagraph (D)), and executes an affidavit of support with respect to such alien in a case in which—
(i) the individual petitioning under
(ii) the Attorney General has determined for humanitarian reasons that revocation of such petition under
(6) Demonstration of means to maintain income
(A) In general
(i) Method of demonstration
For purposes of this section, a demonstration of the means to maintain income shall include provision of a certified copy of the individual's Federal income tax return for the individual's 3 most recent taxable years and a written statement, executed under oath or as permitted under penalty of perjury under
(ii) Flexibility
For purposes of this section, aliens may demonstrate the means to maintain income through demonstration of significant assets of the sponsored alien or of the sponsor, if such assets are available for the support of the sponsored alien.
(iii) Percent of poverty
For purposes of this section, a reference to an annual income equal to at least a particular percentage of the Federal poverty line means an annual income equal to at least such percentage of the Federal poverty line for a family unit of a size equal to the number of members of the sponsor's household (including family and non-family dependents) plus the total number of other dependents and aliens sponsored by that sponsor.
(B) Limitation
The Secretary of State, or the Attorney General in the case of adjustment of status, may provide that the demonstration under subparagraph (A) applies only to the most recent taxable year.
(h) 2 "Federal poverty line" defined
For purposes of this section, the term "Federal poverty line" means the level of income equal to the official poverty line (as defined by the Director of the Office of Management and Budget, as revised annually by the Secretary of Health and Human Services, in accordance with
(i) Sponsor's social security account number required to be provided
(1) An affidavit of support shall include the social security account number of each sponsor.
(2) The Attorney General shall develop an automated system to maintain the social security account number data provided under paragraph (1).
(3) The Attorney General shall submit an annual report to the Committees on the Judiciary of the House of Representatives and the Senate setting forth—
(A) for the most recent fiscal year for which data are available the number of sponsors under this section and the number of sponsors in compliance with the financial obligations of this section; and
(B) a comparison of such numbers with the numbers of such sponsors for the preceding fiscal year.
(June 27, 1952, ch. 477, title II, ch. 2, §213A, as added
References in Text
Subsection (e) of this section, referred to in subsec. (a)(1)(B), does not define "means-tested public benefit".
The Social Security Act, referred to in subsec. (a)(3)(A), (B), is act Aug. 14, 1935, ch. 531,
Amendments
2002—Subsec. (f)(2), (4)(B)(ii).
Subsec. (f)(5).
1996—
Effective Date of 2002 Amendment
Amendment by
Effective Date of 1996 Amendments; Promulgation of Form
Section 551(c) of div. C of
"(1)
"(2)
Section 423(c) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Fees Relating to Affidavits of Support
"(a)
"(b)
"(c)
Pilot Programs To Require Bonding
Section 564 of div. C of
"(a)
"(1) The Attorney General of the United States shall establish a pilot program in 5 district offices of the Immigration and Naturalization Service to require aliens to post a bond in addition to the affidavit requirements under section 213A of the Immigration and Nationality Act [
"(2) Suit on any such bonds may be brought under the terms and conditions set forth in section 213A of the Immigration and Nationality Act [
"(b)
"(1) criteria and procedures for—
"(A) certifying bonding companies for participation in the program, and
"(B) debarment of any such company that fails to pay a bond, and
"(2) criteria for setting the amount of the bond to assure that the bond is in an amount that is not less than the cost of providing benefits under the programs described in subsection (a)(1) for the alien and the alien's dependents for 6 months.
"(c)
"(d)
"(e)
"(f)
Benefits Not Subject to Reimbursement
Section 423(d) of
"(1) Medical assistance described in section 401(b)(1)(A) [
"(2) Short-term, non-cash, in-kind emergency disaster relief.
"(3) Assistance or benefits under the Richard B. Russell National School Lunch Act [
"(4) Assistance or benefits under the Child Nutrition Act of 1966 [
"(5) Public health assistance for immunizations (not including any assistance under title XIX of the Social Security Act [
"(6) Payments for foster care and adoption assistance under parts B and E of title IV of the Social Security Act [
"(7) Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General, in the Attorney General's sole and unreviewable discretion after consultation with appropriate Federal agencies and departments, which (A) deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and (C) are necessary for the protection of life or safety.
"(8) Programs of student assistance under titles IV, V, IX, and X of the Higher Education Act of 1965 [
"(9) Benefits under the Head Start Act [
"(10) Means-tested programs under the Elementary and Secondary Education Act of 1965 [
"(11) Benefits under the [sic] title I of the Workforce Investment Act of 1998 [
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
2 So in original. Section enacted without a subsec. (g).
§1184. Admission of nonimmigrants
(a) Regulations
(1) The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe, including when he deems necessary the giving of a bond with sufficient surety in such sum and containing such conditions as the Attorney General shall prescribe, to insure that at the expiration of such time or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under
(2)(A) The period of authorized status as a nonimmigrant described in
(B) The period of authorized status as a nonimmigrant described in
(b) Presumption of status; written waiver
Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of
(c) Petition of importing employer; involvement of Departments of Labor and Agriculture
(1) The question of importing any alien as a nonimmigrant under subparagraph (H), (L), (O), or (P)(i) of
(2)(A) The Attorney General shall provide for a procedure under which an importing employer which meets requirements established by the Attorney General may file a blanket petition to import aliens as nonimmigrants described in
(B) For purposes of
(C) The Attorney General shall provide a process for reviewing and acting upon petitions under this subsection with respect to nonimmigrants described in
(D) The period of authorized admission for—
(i) a nonimmigrant admitted to render services in a managerial or executive capacity under
(ii) a nonimmigrant admitted to render services in a capacity that involves specialized knowledge under
(E) In the case of an alien spouse admitted under
(3) The Attorney General shall approve a petition—
(A) with respect to a nonimmigrant described in
(B) with respect to a nonimmigrant described in
In the case of an alien seeking entry for a motion picture or television production, (i) any opinion under the previous sentence shall only be advisory, (ii) any such opinion that recommends denial must be in writing, (iii) in making the decision the Attorney General shall consider the exigencies and scheduling of the production, and (iv) the Attorney General shall append to the decision any such opinion. The Attorney General shall provide by regulation for the waiver of the consultation requirement under subparagraph (A) in the case of aliens who have been admitted as nonimmigrants under
(4)(A) For purposes of
(i) performs as an athlete, individually or as part of a group or team, at an internationally recognized level of performance, and
(ii) seeks to enter the United States temporarily and solely for the purpose of performing as such an athlete with respect to a specific athletic competition.
(B)(i) For purposes of
(I) performs with or is an integral and essential part of the performance of an entertainment group that has (except as provided in clause (ii)) been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time,
(II) in the case of a performer or entertainer, except as provided in clause (iii), has had a sustained and substantial relationship with that group (ordinarily for at least one year) and provides functions integral to the performance of the group, and
(III) seeks to enter the United States temporarily and solely for the purpose of performing as such a performer or entertainer or as an integral and essential part of a performance.
(ii) In the case of an entertainment group that is recognized nationally as being outstanding in its discipline for a sustained and substantial period of time, the Attorney General may, in consideration of special circumstances, waive the international recognition requirement of clause (i)(I).
(iii)(I) The one-year relationship requirement of clause (i)(II) shall not apply to 25 percent of the performers and entertainers in a group.
(II) The Attorney General may waive such one-year relationship requirement for an alien who because of illness or unanticipated and exigent circumstances replaces an essential member of the group and for an alien who augments the group by performing a critical role.
(iv) The requirements of subclauses (I) and (II) of clause (i) shall not apply to alien circus personnel who perform as part of a circus or circus group or who constitute an integral and essential part of the performance of such circus or circus group, but only if such personnel are entering the United States to join a circus that has been recognized nationally as outstanding for a sustained and substantial period of time or as part of such a circus.
(C) A person may petition the Attorney General for classification of an alien as a nonimmigrant under
(D) The Attorney General shall approve petitions under this subsection with respect to nonimmigrants described in clause (i) or (iii) of
(E) The Attorney General shall approve petitions under this subsection for nonimmigrants described in
(5)(A) In the case of an alien who is provided nonimmigrant status under
(B) In the case of an alien who is admitted to the United States in nonimmigrant status under
(6)(A)(i) To meet the consultation requirement of paragraph (3)(A) in the case of a petition for a nonimmigrant described in
(ii) To meet the consultation requirement of paragraph (3)(B) in the case of a petition for a nonimmigrant described in
(iii) To meet the consultation requirement of paragraph (4)(D) in the case of a petition for a nonimmigrant described in
(B) To meet the consultation requirements of subparagraph (A), unless the petitioner submits with the petition an advisory opinion from an appropriate labor organization, the Attorney General shall forward a copy of the petition and all supporting documentation to the national office of an appropriate labor organization within 5 days of the date of receipt of the petition. If there is a collective bargaining representative of an employer's employees in the occupational classification for which the alien is being sought, that representative shall be the appropriate labor organization.
(C) In those cases in which a petitioner described in subparagraph (A) establishes that an appropriate peer group (including a labor organization) does not exist, the Attorney General shall adjudicate the petition without requiring an advisory opinion.
(D) Any person or organization receiving a copy of a petition described in subparagraph (A) and supporting documents shall have no more than 15 days following the date of receipt of such documents within which to submit a written advisory opinion or comment or to provide a letter of no objection. Once the 15-day period has expired and the petitioner has had an opportunity, where appropriate, to supply rebuttal evidence, the Attorney General shall adjudicate such petition in no more than 14 days. The Attorney General may shorten any specified time period for emergency reasons if no unreasonable burden would be thus imposed on any participant in the process.
(E)(i) The Attorney General shall establish by regulation expedited consultation procedures in the case of nonimmigrant artists or entertainers described in
(ii) The Attorney General shall establish by regulation expedited consultation procedures in the case of nonimmigrant athletes described in
(F) No consultation required under this subsection by the Attorney General with a nongovernmental entity shall be construed as permitting the Attorney General to delegate any authority under this subsection to such an entity. The Attorney General shall give such weight to advisory opinions provided under this section as the Attorney General determines, in his sole discretion, to be appropriate.
(7) If a petition is filed and denied under this subsection, the Attorney General shall notify the petitioner of the determination and the reasons for the denial and of the process by which the petitioner may appeal the determination.
(8) The Attorney General shall submit annually to the Committees on the Judiciary of the House of Representatives and of the Senate a report describing, with respect to petitions under each subcategory of subparagraphs (H), (O), (P), and (Q) of
(A) The number of such petitions which have been filed.
(B) The number of such petitions which have been approved and the number of workers (by occupation) included in such approved petitions.
(C) The number of such petitions which have been denied and the number of workers (by occupation) requested in such denied petitions.
(D) The number of such petitions which have been withdrawn.
(E) The number of such petitions which are awaiting final action.
(9)(A) The Attorney General shall impose a fee on an employer (excluding any employer that is a primary or secondary education institution, an institution of higher education, as defined in
(i) initially to grant an alien nonimmigrant status described in
(ii) to extend the stay of an alien having such status (unless the employer previously has obtained an extension for such alien); or
(iii) to obtain authorization for an alien having such status to change employers.
(B) The amount of the fee shall be $1,000 for each such petition.
(C) Fees collected under this paragraph shall be deposited in the Treasury in accordance with
(10) An amended H–1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
(11)(A) Subject to subparagraph (B), the Secretary of Homeland Security or the Secretary of State, as appropriate, shall impose a fee on an employer who has filed an attestation described in
(i) in order that an alien may be initially granted nonimmigrant status described in
(ii) in order to satisfy the requirement of the second sentence of subsection (g)(8)(C) of this section for an alien having such status to obtain certain extensions of stay.
(B) The amount of the fee shall be the same as the amount imposed by the Secretary of Homeland Security under paragraph (9), except that if such paragraph does not authorize such Secretary to impose any fee, no fee shall be imposed under this paragraph.
(C) Fees collected under this paragraph shall be deposited in the Treasury in accordance with
(d) Issuance of visa to fiancée or fiancé of citizen
A visa shall not be issued under the provisions of
(e) Nonimmigrant professionals and annual numerical limit
(1) Notwithstanding any other provision of this chapter, an alien who is a citizen of Canada and seeks to enter the United States under and pursuant to the provisions of Annex 1502.1 (United States of America), Part C—Professionals, of the United States-Canada Free-Trade Agreement to engage in business activities at a professional level as provided for therein may be admitted for such purpose under regulations of the Attorney General promulgated after consultation with the Secretaries of State and Labor.
(2) An alien who is a citizen of Canada or Mexico, and the spouse and children of any such alien if accompanying or following to join such alien, who seeks to enter the United States under and pursuant to the provisions of Section D of Annex 1603 of the North American Free Trade Agreement (in this subsection referred to as "NAFTA") to engage in business activities at a professional level as provided for in such Annex, may be admitted for such purpose under regulations of the Attorney General promulgated after consultation with the Secretaries of State and Labor. For purposes of this chapter, including the issuance of entry documents and the application of subsection (b) of this section, such alien shall be treated as if seeking classification, or classifiable, as a nonimmigrant under
(3) The Attorney General shall establish an annual numerical limit on admissions under paragraph (2) of aliens who are citizens of Mexico, as set forth in Appendix 1603.D.4 of Annex 1603 of the NAFTA. Subject to paragraph (4), the annual numerical limit—
(A) beginning with the second year that NAFTA is in force, may be increased in accordance with the provisions of paragraph 5(a) of Section D of such Annex, and
(B) shall cease to apply as provided for in paragraph 3 of such Appendix.
(4) The annual numerical limit referred to in paragraph (3) may be increased or shall cease to apply (other than by operation of paragraph 3 of such Appendix) only if—
(A) the President has obtained advice regarding the proposed action from the appropriate advisory committees established under
(B) the President has submitted a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that sets forth—
(i) the action proposed to be taken and the reasons therefor, and
(ii) the advice obtained under subparagraph (A);
(C) a period of at least 60 calendar days that begins on the first day on which the President has met the requirements of subparagraphs (A) and (B) with respect to such action has expired; and
(D) the President has consulted with such committees regarding the proposed action during the period referred to in subparagraph (C).
(5) During the period that the provisions of Appendix 1603.D.4 of Annex 1603 of the NAFTA apply, the entry of an alien who is a citizen of Mexico under and pursuant to the provisions of Section D of Annex 1603 of NAFTA shall be subject to the attestation requirement of
(6) In the case of an alien spouse admitted under
(f) Denial of crewmember status in case of certain labor disputes
(1) Except as provided in paragraph (3), no alien shall be entitled to nonimmigrant status described in
(2) An alien described in paragraph (1)—
(A) may not be paroled into the United States pursuant to
(B) shall be considered not to be a bona fide crewman for purposes of
(3) Paragraph (1) shall not apply to an alien if the air carrier or owner or operator of such vessel that employs the alien provides documentation that satisfies the Attorney General that the alien—
(A) has been an employee of such employer for a period of not less than 1 year preceding the date that a strike or lawful lockout commenced;
(B) has served as a qualified crewman for such employer at least once in each of 3 months during the 12-month period preceding such date; and
(C) shall continue to provide the same services that such alien provided as such a crewman.
(g) Temporary workers and trainees; limitation on numbers
(1) The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year (beginning with fiscal year 1992)—
(A) under
(i) 65,000 in each fiscal year before fiscal year 1999;
(ii) 115,000 in fiscal year 1999;
(iii) 115,000 in fiscal year 2000;
(iv) 195,000 in fiscal year 2001;
(v) 195,000 in fiscal year 2002;
(vi) 195,000 in fiscal year 2003; and
(vii) 65,000 in each succeeding fiscal year; or
(B) under
(2) The numerical limitations of paragraph (1) shall only apply to principal aliens and not to the spouses or children of such aliens.
(3) Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status. If an alien who was issued a visa or otherwise provided nonimmigrant status and counted against the numerical limitations of paragraph (1) is found to have been issued such visa or otherwise provided such status by fraud or willfully misrepresenting a material fact and such visa or nonimmigrant status is revoked, then one number shall be restored to the total number of aliens who may be issued visas or otherwise provided such status under the numerical limitations of paragraph (1) in the fiscal year in which the petition is revoked, regardless of the fiscal year in which the petition was approved.
(4) In the case of a nonimmigrant described in
(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under
(A) an institution of higher education (as defined in
(B) a nonprofit research organization or a governmental research organization.
(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in
(7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c) of this section, toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.
(8)(A) The agreements referred to in
(i) the United States-Chile Free Trade Agreement; and
(ii) the United States-Singapore Free Trade Agreement.
(B)(i) The Secretary of Homeland Security shall establish annual numerical limitations on approvals of initial applications by aliens for admission under
(ii) The annual numerical limitations described in clause (i) shall not exceed—
(I) 1,400 for nationals of Chile (as defined in article 14.9 of the United States-Chile Free Trade Agreement) for any fiscal year; and
"(II) 5,400 for nationals of Singapore (as defined in Annex 1A of the United States-Singapore Free Trade Agreement) for any fiscal year.
(iii) The annual numerical limitations described in clause (i) shall only apply to principal aliens and not to the spouses or children of such aliens.
(iv) The annual numerical limitation described in paragraph (1)(A) is reduced by the amount of the annual numerical limitations established under clause (i). However, if a numerical limitation established under clause (i) has not been exhausted at the end of a given fiscal year, the Secretary of Homeland Security shall adjust upwards the numerical limitation in paragraph (1)(A) for that fiscal year by the amount remaining in the numerical limitation under clause (i). Visas under
(C) The period of authorized admission as a nonimmigrant under
(D) The numerical limitation described in paragraph (1)(A) for a fiscal year shall be reduced by one for each alien granted an extension under subparagraph (C) during such year who has obtained 5 or more consecutive prior extensions.
(h) Intention to abandon foreign residence
The fact that an alien is the beneficiary of an application for a preference status filed under
(i) "Specialty occupation" defined
(1) Except as provided in paragraph (3), for purposes of
(A) theoretical and practical application of a body of highly specialized knowledge, and
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
(2) For purposes of
(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,
(B) completion of the degree described in paragraph (1)(B) for the occupation, or
(C)(i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
(3) For purposes of
(A) theoretical and practical application of a body of specialized knowledge; and
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
(j) Labor disputes
(1) Notwithstanding any other provision of this chapter, an alien who is a citizen of Canada or Mexico who seeks to enter the United States under and pursuant to the provisions of Section B, Section C, or Section D of Annex 1603 of the North American Free Trade Agreement, shall not be classified as a nonimmigrant under such provisions if there is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment, unless such alien establishes, pursuant to regulations promulgated by the Attorney General, that the alien's entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout. Notice of a determination under this paragraph shall be given as may be required by paragraph 3 of article 1603 of such Agreement. For purposes of this paragraph, the term "citizen of Mexico" means "citizen" as defined in Annex 1608 of such Agreement.
(2) Notwithstanding any other provision of this chapter except
(k) Numerical limitations; period of admission; conditions for admission and stay; annual report
(1) The number of aliens who may be provided a visa as nonimmigrants under
(2) The period of admission of an alien as such a nonimmigrant may not exceed 3 years. Such period may not be extended by the Attorney General.
(3) As a condition for the admission, and continued stay in lawful status, of such a nonimmigrant, the nonimmigrant—
(A) shall report not less often than quarterly to the Attorney General such information concerning the alien's whereabouts and activities as the Attorney General may require;
(B) may not be convicted of any criminal offense punishable by a term of imprisonment of 1 year or more after the date of such admission;
(C) must have executed a form that waives the nonimmigrant's right to contest, other than on the basis of an application for withholding of removal, any action for removal of the alien instituted before the alien obtains lawful permanent resident status; and
(D) shall abide by any other condition, limitation, or restriction imposed by the Attorney General.
(4) The Attorney General shall submit a report annually to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate concerning—
(A) the number of such nonimmigrants admitted;
(B) the number of successful criminal prosecutions or investigations resulting from cooperation of such aliens;
(C) the number of terrorist acts prevented or frustrated resulting from cooperation of such aliens;
(D) the number of such nonimmigrants whose admission or cooperation has not resulted in successful criminal prosecution or investigation or the prevention or frustration of a terrorist act; and
(E) the number of such nonimmigrants who have failed to report quarterly (as required under paragraph (3)) or who have been convicted of crimes in the United States after the date of their admission as such a nonimmigrant.
(l) Restrictions on waiver
(1) In the case of a request by an interested State agency, or by an interested Federal agency, for a waiver of the 2-year foreign residence requirement under
(A) in the case of an alien who is otherwise contractually obligated to return to a foreign country, the government of such country furnishes the Director of the United States Information Agency with a statement in writing that it has no objection to such waiver;
(B) in the case of a request by an interested State agency, the grant of such waiver would not cause the number of waivers allotted for that State for that fiscal year to exceed 30;
(C) in the case of a request by an interested Federal agency or by an interested State agency—
(i) the alien demonstrates a bona fide offer of full-time employment at a health facility or health care organization, which employment has been determined by the Attorney General to be in the public interest; and
(ii) the alien agrees to begin employment with the health facility or health care organization within 90 days of receiving such waiver, and agrees to continue to work for a total of not less than 3 years (unless the Attorney General determines that extenuating circumstances exist, such as closure of the facility or hardship to the alien, which would justify a lesser period of employment at such health facility or health care organization, in which case the alien must demonstrate another bona fide offer of employment at a health facility or health care organization for the remainder of such 3-year period); and
(D) in the case of a request by an interested Federal agency (other than a request by an interested Federal agency to employ the alien full-time in medical research or training) or by an interested State agency, the alien agrees to practice medicine in accordance with paragraph (2) for a total of not less than 3 years only in the geographic area or areas which are designated by the Secretary of Health and Human Services as having a shortage of health care professionals, except that, in the case of a request by the Department of Veterans Affairs, the alien shall not be required to practice medicine in a geographic area designated by the Secretary.
(2)(A) Notwithstanding
(B) No person who has obtained a change of status under subparagraph (A) and who has failed to fulfill the terms of the contract with the health facility or health care organization named in the waiver application shall be eligible to apply for an immigrant visa, for permanent residence, or for any other change of nonimmigrant status, until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of at least 2 years following departure from the United States.
(3) Notwithstanding any other provision of this subsection, the 2-year foreign residence requirement under
(A) at any time the alien ceases to comply with any agreement entered into under subparagraph (C) or (D) of paragraph (1); or
(B) the alien's employment ceases to benefit the public interest at any time during the 3-year period described in paragraph (1)(C).
(m) Nonimmigrant elementary and secondary school students
(1) An alien may not be accorded status as a nonimmigrant under clause (i) or (iii) of
(A) at a public elementary school or in a publicly funded adult education program; or
(B) at a public secondary school unless—
(i) the aggregate period of such status at such a school does not exceed 12 months with respect to any alien, and (ii) the alien demonstrates that the alien has reimbursed the local educational agency that administers the school for the full, unsubsidized per capita cost of providing education at such school for the period of the alien's attendance.
(2) An alien who obtains the status of a nonimmigrant under clause (i) or (iii) of
(n) Increased portability of H–1B status
(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under
(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien—
(A) who has been lawfully admitted into the United States;
(B) on whose behalf an employer has filed a nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and
(C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.
(o) Nonimmigrants guilty of trafficking in persons
(1) No alien shall be eligible for admission to the United States under
(2) The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year under
(3) The numerical limitation of paragraph (2) shall only apply to principal aliens and not to the spouses, sons, daughters, siblings, or parents of such aliens.
(4) An unmarried alien who seeks to accompany, or follow to join, a parent granted status under
(5) An alien described in clause (i) of
(6) In making a determination under section 1101(a)(15)(T)(i)(III)(aa) with respect to an alien, statements from State and local law enforcement officials that the alien has complied with any reasonable request for assistance in the investigation or prosecution of crimes such as kidnapping, rape, slavery, or other forced labor offenses, where severe forms of trafficking in persons (as defined in
(p) Requirements applicable to section 1101(a)(15)(U) visas
(1) Petitioning procedures for section 1101(a)(15)(U) visas
The petition filed by an alien under
(2) Numerical limitations
(A) The number of aliens who may be issued visas or otherwise provided status as nonimmigrants under
(B) The numerical limitations in subparagraph (A) shall only apply to principal aliens described in
(3) Duties of the Attorney General with respect to "U" visa nonimmigrants
With respect to nonimmigrant aliens described in subsection (a)(15)(U) of
(A) the Attorney General and other government officials, where appropriate, shall provide those aliens with referrals to nongovernmental organizations to advise the aliens regarding their options while in the United States and the resources available to them; and
(B) the Attorney General shall, during the period those aliens are in lawful temporary resident status under that subsection, provide the aliens with employment authorization.
(4) Credible evidence considered
In acting on any petition filed under this subsection, the consular officer or the Attorney General, as appropriate, shall consider any credible evidence relevant to the petition.
(5) Nonexclusive relief
Nothing in this subsection limits the ability of aliens who qualify for status under
(q) Employment of nonimmigrants described in section 1101(a)(15)(V)
(1) In the case of a nonimmigrant described in
(A) the Attorney General shall authorize the alien to engage in employment in the United States during the period of authorized admission and shall provide the alien with an "employment authorized" endorsement or other appropriate document signifying authorization of employment; and
(B) the period of authorized admission as such a nonimmigrant shall terminate 30 days after the date on which any of the following is denied:
(i) The petition filed under
(ii) The alien's application for an immigrant visa pursuant to the approval of such petition.
(iii) The alien's application for adjustment of status under
(2) In determining whether an alien is eligible to be admitted to the United States as a nonimmigrant under
(3) The status of an alien physically present in the United States may be adjusted by the Attorney General, in the discretion of the Attorney General and under such regulations as the Attorney General may prescribe, to that of a nonimmigrant under
(A) applies for such adjustment;
(B) satisfies the requirements of such section; and
(C) is eligible to be admitted to the United States, except in determining such admissibility, the grounds for inadmissibility specified in paragraphs (6)(A), (7), and (9)(B) of
(r) Visas of nonimmigrants described in section 1101(a)(15)(K)(ii)
(1) A visa shall not be issued under the provisions of
(2) In the case of an alien seeking admission under
(3) In the case of a nonimmigrant described in
(A) The petition filed under
(B) The principal alien's application for an immigrant visa pursuant to the approval of such petition.
(C) The principal alien's application for adjustment of status under
(June 27, 1952, ch. 477, title II, ch. 2, §214,
Amendment of Section
For termination of amendment by section 107(c) of
For termination of amendment by section 107(c) of
References in Text
The International Organizations Immunities Act, referred to in subsec. (b), is act Dec. 29, 1945, ch. 652, title I,
Amendments
2003—Subsec. (b).
Subsec. (c)(1).
Subsec. (c)(11).
Subsec. (g)(8).
Subsec. (g)(8)(A).
Subsec. (g)(8)(B)(ii).
Subsec. (h).
Subsec. (i)(1).
Subsec. (i)(3).
Subsec. (j).
Subsec. (m).
Subsec. (n).
Subsec. (n)(3).
Subsec. (n)(4) to (6).
Subsec. (o).
Subsec. (p).
Subsec. (q).
Subsec. (r).
2002—Subsec. (c)(2)(A).
Subsec. (c)(2)(E).
Subsec. (e)(6).
Subsec. (l)(1)(B).
Subsec. (m).
2001—Subsec. (k)(2).
Subsec. (k)(3).
Subsec. (k)(4).
Subsec. (k)(4)(E).
Subsec. (k)(5).
2000—Subsec. (b).
Subsec. (c)(9)(A).
Subsec. (c)(9)(B).
Subsec. (c)(10).
Subsec. (d).
Subsec. (g)(1)(A)(iv) to (vii).
Subsec. (g)(3).
Subsec. (g)(5) to (7).
Subsec. (h).
Subsec. (l).
Subsec. (m).
Subsec. (n).
Subsec. (o).
Subsec. (p).
1999—Subsec. (k)(2).
1998—Subsec. (c)(9).
Subsec. (g)(1)(A).
1997—Subsec. (l)(1)(D).
1996—Subsec. (c)(2)(A).
Subsec. (c)(5)(B).
Subsec. (d).
Subsec. (f)(1).
Subsec. (j).
Subsec. (j)(1).
Subsec. (k).
Subsec. (k)(4)(C).
Subsec. (l).
1994—Subsec. (j).
Subsec. (k).
1993—Subsec. (e).
Subsec. (j).
1991—Subsec. (a)(2)(A).
Subsec. (a)(2)(B).
Subsec. (c)(2)(A).
Subsec. (c)(2)(D).
Subsec. (c)(3).
Subsec. (c)(3)(A).
Subsec. (c)(3)(B).
Subsec. (c)(4)(A), (B).
Subsec. (c)(4)(C).
Subsec. (c)(4)(D).
Subsec. (c)(4)(E).
Subsec. (c)(5).
Subsec. (c)(5)(A).
Subsec. (c)(6), (7).
Subsec. (c)(8).
Subsec. (g)(1).
1990—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (f).
Subsecs. (g) to (i).
1988—Subsec. (c).
Subsec. (e).
1986—Subsec. (a).
Subsec. (c).
Subsec. (d).
1984—Subsec. (a).
1970—Subsec. (c).
Subsec. (d).
Effective and Termination Dates of 2003 Amendments
Amendment by
Amendment by
Effective Date of 2002 Amendment
Amendment by
Effective Date of 2000 Amendments
Amendment by section 1(a)(2) [title XI, §1102(b), (d)(1)] of
Amendment by section 1(a)(2) [title XI, §1103(b), (c)(1)] of
Effective Date of 1998 Amendment
Effective Date of 1996 Amendment
Amendment by section 308(e)(1)(D), (2)(B), (f)(1)(G), (H), (3)(B), (g)(5)(A)(i), (7)(A) of
Amendment by section 625(a)(1) of
Amendment by section 671(a)(3)(A) of
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1993 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by sections 202(a), 203(b), 204, 205(d), (e), 206(a), (c)(2), 207(a), (c)(1) of
Amendment by section 303(a)(10)–(12) of
Effective Date of 1990 Amendment
Amendment by section 202(a) of
Amendment by sections 205(a), (b), (c)(2), 206(b), and 207(b) of
Effective and Termination Dates of 1988 Amendments
Amendment by
Amendment by
Effective Date of 1986 Amendments
Section 3(d)(1), (3) of
"(1) The amendments made by subsection (a) [amending this section] shall apply to petitions approved on or after the date of the enactment of this Act [Nov. 10, 1986].
"(3) The amendment made by subsection (c) [amending this section] shall apply to aliens issued visas under section 101(a)(15)(K) of the Immigration and Nationality Act [
Amendment by section 301(b) of
Transfer of Functions
United States Information Agency (other than Broadcasting Board of Governors and International Broadcasting Bureau) abolished and functions transferred to Secretary of State, see
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Additional Visas for Fiscal Years 1999 and 2000
"(1)
"(B) In the case of any alien on behalf of whom a petition for status under section 101(a)(15)(H)(i)(b) is filed before September 1, 2000, and is subsequently approved, that alien shall be counted toward the numerical ceiling for fiscal year 2000 notwithstanding the date of the approval of the petition. Notwithstanding section 214(g)(1)(A)(iii) of the Immigration and Nationality Act, the total number of aliens who may be issued visas or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of such Act in fiscal year 2000 is increased by a number equal to the number of aliens who may be issued visas or otherwise provided nonimmigrant status who filed a petition during the period beginning on the date on which the limitation in such section 214(g)(1)(A)(iii) is reached and ending on August 31, 2000.
"(2)
One-Time Protection Under Per Country Ceiling
"(1) is the beneficiary of a petition filed under section 204(a) of that Act [
"(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs,
may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon."
Special Provisions in Cases of Lengthy Adjudications
"(a)
"(1) Any application for labor certification under section 212(a)(5)(A) of such Act (
"(2) A petition described in section 204(b) of such Act (
"(b)
"(1) to deny the application described in subsection (a)(1), or, in a case in which such application is granted, to deny a petition described in subsection (a)(2) filed on behalf of the alien pursuant to such grant;
"(2) to deny the petition described in subsection (a)(2); or
"(3) to grant or deny the alien's application for an immigrant visa or for adjustment of status to that of an alien lawfully admitted for permanent residence."
Exclusion of Certain "J" Nonimmigrants From Numerical Limitations Applicable To "H–1B" Nonimmmigrants
Improving Count of H–1B and H–2B Nonimmigrants
"(a)
"(b)
"(c)
"(1)
"(2)
"(3)
Reporting on Studies Showing Economic Impact of H–1B Nonimmigrant Increase
Deadline for First Report With Respect to Petitions
Section 207(c)(2) of
Delay Until April 1, 1992, in Application of Subsection (g)(1)(C) of This Section
See section 3 of
Work Authorization During Pending Labor Disputes
Section 207(c) of
"(1) In the case of an alien admitted as a nonimmigrant (other than under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act [
"(A) continues to be authorized to be employed in the occupation for that employer, and
"(B) is authorized to be employed in any occupation for any other employer so long as such strike or lockout continues with respect to that occupation and employer.
"(2) In the case of an alien admitted as a nonimmigrant (other than under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act) and who is authorized to be employed in an occupation, if nonimmigrants do not constitute a majority of the members of the bargaining unit in the occupation, during the period of any strike or lockout in the occupation with the employer which strike or lockout is pending on the date of the enactment of this Act the alien—
"(A) is not authorized to be employed in the occupation for that employer, and
"(B) is authorized to be employed in any occupation for any other employer so long as there is no strike or lockout with respect to that occupation and employer.
"(3) With respect to a nonimmigrant described in paragraph (1) or (2) who does not perform unauthorized employment, any limit on the period of authorized stay shall be extended by the period of the strike or lockout, except that any such extension may not continue beyond the maximum authorized period of stay.
"(4) The provisions of this subsection shall take effect on the date of the enactment of this Act."
Off-Campus Work Authorization for Students (F Nonimmigrants)
Section 221 of
"(a) 5-
"(1) the alien has completed 1 academic year as such a nonimmigrant and is maintaining good academic standing at the educational institution,
"(2) the employer provides the educational institution and the Secretary of Labor with an attestation that the employer (A) has recruited for at least 60 days for the position and (B) will provide for payment to the alien and to other similarly situated workers at a rate equal to not less than the actual wage level for the occupation at the place of employment or, if greater, the prevailing wage level for the occupation in the area of employment, and
"(3) the alien will not be employed more than 20 hours each week during the academic term (but may be employed on a full-time basis during vacation periods and between academic terms).
If the Secretary of Labor determines that an employer has provided an attestation under paragraph (2) that is materially false or has failed to pay wages in accordance with the attestation, after notice and opportunity for a hearing, the employer shall be disqualified from employing an alien student under this subsection.
"(b)
"(1) whether the program of work authorization under subsection (a) should be extended, and
"(2) the impact of such program on prevailing wages of workers."
Limitation on Admission of Aliens Seeking Employment in the Virgin Islands
Notwithstanding any other provision of law, the Attorney General not to be authorized, on or after Sept. 30, 1982, to approve any petition filed under subsec. (c) of this section in the case of importing any alien as a nonimmigrant under
Importation of Sheepherders; Termination of Quota Deductions
Quota deductions authorized by acts June 30, 1950, ch. 423,
Cancellation of Certain Nonimmigrant Departure Bonds
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by a comma.
§1184a. Philippine Traders as nonimmigrants
Upon a basis of reciprocity secured by agreement entered into by the President of the United States and the President of the Philippines, a national of the Philippines, and the spouse and children of any such national if accompanying or following to join him, may, if otherwise eligible for a visa and if otherwise admissible into the United States under the Immigration and Nationality Act [
(June 18, 1954, ch. 323,
References in Text
The Immigration and Nationality Act, referred to in text, is act June 27, 1952, ch. 477,
Codification
Section was not enacted as a part of the Immigration and Nationality Act which comprises this chapter.
§1185. Travel control of citizens and aliens
(a) Restrictions and prohibitions
Unless otherwise ordered by the President, it shall be unlawful—
(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe;
(2) for any person to transport or attempt to transport from or into the United States another person with knowledge or reasonable cause to believe that the departure or entry of such other person is forbidden by this section;
(3) for any person knowingly to make any false statement in an application for permission to depart from or enter the United States with intent to induce or secure the granting of such permission either for himself or for another;
(4) for any person knowingly to furnish or attempt to furnish or assist in furnishing to another a permit or evidence of permission to depart or enter not issued and designed for such other person's use;
(5) for any person knowingly to use or attempt to use any permit or evidence of permission to depart or enter not issued and designed for his use;
(6) for any person to forge, counterfeit, mutilate, or alter, or cause or procure to be forged, counterfeited, mutilated, or altered, any permit or evidence of permission to depart from or enter the United States;
(7) for any person knowingly to use or attempt to use or furnish to another for use any false, forged, counterfeited, mutilated, or altered permit, or evidence of permission, or any permit or evidence of permission which, though originally valid, has become or been made void or invalid.
(b) Citizens
Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.
(c) Definitions
The term "United States" as used in this section includes the Canal Zone, and all territory and waters, continental or insular, subject to the jurisdiction of the United States. The term "person" as used in this section shall be deemed to mean any individual, partnership, association, company, or other incorporated body of individuals, or corporation, or body politic.
(d) Nonadmission of certain aliens
Nothing in this section shall be construed to entitle an alien to whom a permit to enter the United States has been issued to enter the United States, if, upon arrival in the United States, he is found to be inadmissible under any of the provisions of this chapter, or any other law, relative to the entry of aliens into the United States.
(e) Revocation of proclamation as affecting penalties
The revocation of any rule, regulation, or order issued in pursuance of this section shall not prevent prosecution for any offense committed, or the imposition of any penalties or forfeitures, liability for which was incurred under this section prior to the revocation of such rule, regulation, or order.
(f) Permits to enter
Passports, visas, reentry permits, and other documents required for entry under this chapter may be considered as permits to enter for the purposes of this section.
(June 27, 1952, ch. 477, title II, ch. 2, §215,
References in Text
For definition of Canal Zone, referred to in subsec. (c), see
Amendments
1994—Subsec. (b).
1978—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsecs. (f), (g).
Effective Date of 1994 Amendment
Section 204(b) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Delegation of Authority Under Sections 1182(f) and 1185(a)(1) of This Title
Authority of President under subsec. (a)(1) of this section to maintain custody and conduct screening of any undocumented person seeking to enter the United States who is encountered in a vessel interdicted on the high seas through Dec. 31, 2000, delegated to Attorney General by Memorandum of President of the United States, Sept. 24, 1999, 64 F.R. 55809, set out as a note under
Ex. Ord. No. 12172. Delegation of Authority of President to Secretary of State and Attorney General Respecting Entry of Iranian Aliens Into the United States
Ex. Ord. No. 12172, Nov. 26, 1979, 44 F.R. 67947, as amended by Ex. Ord. No. 12206, Apr. 7, 1980, 45 F.R. 24101, provided:
By virtue of the authority vested in me as President by the Constitution and laws of the United States, including the Immigration and Nationality Act, as amended [this chapter],
Section 1–101. Delegation of Authority. The Secretary of State and the Attorney General are hereby designated and empowered to exercise in respect of Iranians the authority conferred upon the President by section 215(a)(1) of the Act of June 27, 1952 (
Section 1–102. Effective Date. This order is effective immediately.
Jimmy Carter.
Ex. Ord. No. 13323. Assignment of Functions Relating to Arrivals in and Departures From the United States
Ex. Ord. No. 13323, Dec. 30, 2003, 69 F.R. 241, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 215 of the Immigration and Nationality Act (INA), as amended (
George W. Bush.
Section Referred to in Other Sections
This section is referred to in
§1186. Transferred
Codification
Section, act June 27, 1952, ch. 477, title II, ch. 2, §216, as added Nov. 6, 1986,
§1186a. Conditional permanent resident status for certain alien spouses and sons and daughters
(a) In general
(1) Conditional basis for status
Notwithstanding any other provision of this chapter, an alien spouse (as defined in subsection (g)(1) of this section) and an alien son or daughter (as defined in subsection (g)(2) of this section) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.
(2) Notice of requirements
(A) At time of obtaining permanent residence
At the time an alien spouse or alien son or daughter obtains permanent resident status on a conditional basis under paragraph (1), the Attorney General shall provide for notice to such a spouse, son, or daughter respecting the provisions of this section and the requirements of subsection (c)(1) of this section to have the conditional basis of such status removed.
(B) At time of required petition
In addition, the Attorney General shall attempt to provide notice to such a spouse, son, or daughter, at or about the beginning of the 90-day period described in subsection (d)(2)(A) of this section, of the requirements of subsections 1 (c)(1) of this section.
(C) Effect of failure to provide notice
The failure of the Attorney General to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such a spouse, son, or daughter.
(b) Termination of status if finding that qualifying marriage improper
(1) In general
In the case of an alien with permanent resident status on a conditional basis under subsection (a) of this section, if the Attorney General determines, before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, that—
(A) the qualifying marriage—
(i) was entered into for the purpose of procuring an alien's admission as an immigrant, or
(ii) has been judicially annulled or terminated, other than through the death of a spouse; or
(B) a fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under
the Attorney General shall so notify the parties involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (or aliens) involved as of the date of the determination.
(2) Hearing in removal proceeding
Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.
(c) Requirements of timely petition and interview for removal of condition
(1) In general
In order for the conditional basis established under subsection (a) of this section for an alien spouse or an alien son or daughter to be removed—
(A) the alien spouse and the petitioning spouse (if not deceased) jointly must submit to the Attorney General, during the period described in subsection (d)(2) of this section, a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1) of this section, and
(B) in accordance with subsection (d)(3) of this section, the alien spouse and the petitioning spouse (if not deceased) must appear for a personal interview before an officer or employee of the Service respecting the facts and information described in subsection (d)(1) of this section.
(2) Termination of permanent resident status for failure to file petition or have personal interview
(A) In general
In the case of an alien with permanent resident status on a conditional basis under subsection (a) of this section, if—
(i) no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or
(ii) unless there is good cause shown, the alien spouse and petitioning spouse fail to appear at the interview described in paragraph (1)(B),
the Attorney General shall terminate the permanent resident status of the alien as of the second anniversary of the alien's lawful admission for permanent residence.
(B) Hearing in removal proceeding
In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B).
(3) Determination after petition and interview
(A) In general
If—
(i) a petition is filed in accordance with the provisions of paragraph (1)(A), and
(ii) the alien spouse and petitioning spouse appear at the interview described in paragraph (1)(B),
the Attorney General shall make a determination, within 90 days of the date of the interview, as to whether the facts and information described in subsection (d)(1) of this section and alleged in the petition are true with respect to the qualifying marriage.
(B) Removal of conditional basis if favorable determination
If the Attorney General determines that such facts and information are true, the Attorney General shall so notify the parties involved and shall remove the conditional basis of the parties effective as of the second anniversary of the alien's obtaining the status of lawful admission for permanent residence.
(C) Termination if adverse determination
If the Attorney General determines that such facts and information are not true, the Attorney General shall so notify the parties involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien spouse or an alien son or daughter as of the date of the determination.
(D) Hearing in removal proceeding
Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) of this section and alleged in the petition are not true with respect to the qualifying marriage.
(4) Hardship waiver
The Attorney General, in the Attorney General's discretion, may remove the conditional basis of the permanent resident status for an alien who fails to meet the requirements of paragraph (1) if the alien demonstrates that—
(A) extreme hardship would result if such alien is removed,
(B) the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1), or
(C) the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent and the alien was not at fault in failing to meet the requirements of paragraph (1).
In determining extreme hardship, the Attorney General shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis. In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General. The Attorney General shall, by regulation, establish measures to protect the confidentiality of information concerning any abused alien spouse or child, including information regarding the whereabouts of such spouse or child.
(d) Details of petition and interview
(1) Contents of petition
Each petition under subsection (c)(1)(A) of this section shall contain the following facts and information:
(A) Statement of proper marriage and petitioning process
The facts are that—
(i) the qualifying marriage—
(I) was entered into in accordance with the laws of the place where the marriage took place,
(II) has not been judicially annulled or terminated, other than through the death of a spouse, and
(III) was not entered into for the purpose of procuring an alien's admission as an immigrant; and
(ii) no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under
(B) Statement of additional information
The information is a statement of—
(i) the actual residence of each party to the qualifying marriage since the date the alien spouse obtained permanent resident status on a conditional basis under subsection (a) of this section, and
(ii) the place of employment (if any) of each such party since such date, and the name of the employer of such party.
(2) Period for filing petition
(A) 90-day period before second anniversary
Except as provided in subparagraph (B), the petition under subsection (c)(1)(A) of this section must be filed during the 90-day period before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence.
(B) Date petitions for good cause
Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Attorney General good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A).
(C) Filing of petitions during removal
In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Attorney General may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B).
(3) Personal interview
The interview under subsection (c)(1)(B) of this section shall be conducted within 90 days after the date of submitting a petition under subsection (c)(1)(A) of this section and at a local office of the Service, designated by the Attorney General, which is convenient to the parties involved. The Attorney General, in the Attorney General's discretion, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate.
(e) Treatment of period for purposes of naturalization
For purposes of subchapter III of this chapter, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence.
(f) Treatment of certain waivers
In the case of an alien who has permanent residence status on a conditional basis under this section, if, in order to obtain such status, the alien obtained a waiver under subsection (h) or (i) of
(g) Definitions
In this section:
(1) The term "alien spouse" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise)—
(A) as an immediate relative (described in
(B) under
(C) under
by virtue of a marriage which was entered into less than 24 months before the date the alien obtains such status by virtue of such marriage, but does not include such an alien who only obtains such status as a result of
(2) The term "alien son or daughter" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the son or daughter of an individual through a qualifying marriage.
(3) The term "qualifying marriage" means the marriage described to in paragraph (1).
(4) The term "petitioning spouse" means the spouse of a qualifying marriage, other than the alien.
(June 27, 1952, ch. 477, title II, ch. 2, §216, as added
References in Text
Subsection (p) of
Codification
Another section 216 of act June 27, 1952, was renumbered section 218 and is classified to
Amendments
2000—Subsecs. (b)(1)(B), (d)(1)(A)(ii).
1996—Subsec. (b)(1)(A)(i).
Subsec. (b)(2).
Subsec. (c)(2)(B).
Subsec. (c)(3)(D).
Subsec. (c)(4)(A).
Subsec. (d)(1)(A)(i)(III).
Subsec. (d)(2)(C).
Subsec. (f).
1994—Subsec. (c)(4).
1991—Subsec. (g)(1).
1990—Subsec. (c)(4).
1988—
Subsec. (c)(3)(A).
Effective Date of 2000 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1994 Amendment
Section 40702(b) of
Effective Date of 1991 Amendment
Section 302(e)(8) of
Effective Date of 1990 Amendment
Section 701(b) of
Effective Date of 1988 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "subsection".
2 See References in Text note below.
§1186b. Conditional permanent resident status for certain alien entrepreneurs, spouses, and children
(a) In general
(1) Conditional basis for status
Notwithstanding any other provision of this chapter, an alien entrepreneur (as defined in subsection (f)(1) of this section), alien spouse, and alien child (as defined in subsection (f)(2) of this section) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.
(2) Notice of requirements
(A) At time of obtaining permanent residence
At the time an alien entrepreneur, alien spouse, or alien child obtains permanent resident status on a conditional basis under paragraph (1), the Attorney General shall provide for notice to such an entrepreneur, spouse, or child respecting the provisions of this section and the requirements of subsection (c)(1) of this section to have the conditional basis of such status removed.
(B) At time of required petition
In addition, the Attorney General shall attempt to provide notice to such an entrepreneur, spouse, or child, at or about the beginning of the 90-day period described in subsection (d)(2)(A) of this section, of the requirements of subsection (c)(1) of this section.
(C) Effect of failure to provide notice
The failure of the Attorney General to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such an entrepreneur, spouse, or child.
(b) Termination of status if finding that qualifying entrepreneurship improper
(1) In general
In the case of an alien entrepreneur with permanent resident status on a conditional basis under subsection (a) of this section, if the Attorney General determines, before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, that—
(A) the investment in the commercial enterprise was intended solely as a means of evading the immigration laws of the United States,
(B)(i) the alien did not invest, or was not actively in the process of investing, the requisite capital; or
(ii) the alien was not sustaining the actions described in clause (i) throughout the period of the alien's residence in the United States; or
(C) the alien was otherwise not conforming to the requirements of
then the Attorney General shall so notify the alien involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (and the alien spouse and alien child) involved as of the date of the determination.
(2) Hearing in removal proceeding
Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.
(c) Requirements of timely petition and interview for removal of condition
(1) In general
In order for the conditional basis established under subsection (a) of this section for an alien entrepreneur, alien spouse, or alien child to be removed—
(A) the alien entrepreneur must submit to the Attorney General, during the period described in subsection (d)(2) of this section, a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1) of this section, and
(B) in accordance with subsection (d)(3) of this section, the alien entrepreneur must appear for a personal interview before an officer or employee of the Service respecting the facts and information described in subsection (d)(1) of this section.
(2) Termination of permanent resident status for failure to file petition or have personal interview
(A) In general
In the case of an alien with permanent resident status on a conditional basis under subsection (a) of this section, if—
(i) no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or
(ii) unless there is good cause shown, the alien entrepreneur fails to appear at the interview described in paragraph (1)(B) (if required under subsection (d)(3) of this section),
the Attorney General shall terminate the permanent resident status of the alien (and the alien's spouse and children if it was obtained on a conditional basis under this section or
(B) Hearing in removal proceeding
In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B).
(3) Determination after petition and interview
(A) In general
If—
(i) a petition is filed in accordance with the provisions of paragraph (1)(A), and
(ii) the alien entrepreneur appears at any interview described in paragraph (1)(B),
the Attorney General shall make a determination, within 90 days of the date of the such filing 1 or interview (whichever is later), as to whether the facts and information described in subsection (d)(1) of this section and alleged in the petition are true with respect to the qualifying commercial enterprise.
(B) Removal of conditional basis if favorable determination
If the Attorney General determines that such facts and information are true, the Attorney General shall so notify the alien involved and shall remove the conditional basis of the alien's status effective as of the second anniversary of the alien's lawful admission for permanent residence.
(C) Termination if adverse determination
If the Attorney General determines that such facts and information are not true, the Attorney General shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien entrepreneur, alien spouse, or alien child as of the date of the determination.
(D) Hearing in removal proceeding
Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) of this section and alleged in the petition are not true with respect to the qualifying commercial enterprise.
(d) Details of petition and interview
(1) Contents of petition
Each petition under subsection (c)(1)(A) of this section shall contain facts and information demonstrating that the alien—
(A)(i) invested, or is actively in the process of investing, the requisite capital; and
(ii) sustained the actions described in clause (i) throughout the period of the alien's residence in the United States; and
(B) is otherwise conforming to the requirements of
(2) Period for filing petition
(A) 90-day period before second anniversary
Except as provided in subparagraph (B), the petition under subsection (c)(1)(A) of this section must be filed during the 90-day period before the second anniversary of the alien's lawful admission for permanent residence.
(B) Date petitions for good cause
Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Attorney General good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A).
(C) Filing of petitions during removal
In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Attorney General may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B).
(3) Personal interview
The interview under subsection (c)(1)(B) of this section shall be conducted within 90 days after the date of submitting a petition under subsection (c)(1)(A) of this section and at a local office of the Service, designated by the Attorney General, which is convenient to the parties involved. The Attorney General, in the Attorney General's discretion, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate.
(e) Treatment of period for purposes of naturalization
For purposes of subchapter III of this chapter, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence.
(f) Definitions
In this section:
(1) The term "alien entrepreneur" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) under
(2) The term "alien spouse" and the term "alien child" mean an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the spouse or child, respectively, of an alien entrepreneur.
(3) The term "commercial enterprise" includes a limited partnership.
(June 27, 1952, ch. 477, title II, ch. 2, §216A, as added
Amendments
2002—Subsec. (b)(1)(A).
Subsec. (b)(1)(B).
"(B)(i) a commercial enterprise was not established by the alien,
"(ii) the alien did not invest or was not actively in the process of investing the requisite capital; or
"(iii) the alien was not sustaining the actions described in clause (i) or (ii) throughout the period of the alien's residence in the United States, or".
Subsec. (d)(1).
"(A) a commercial enterprise was established by the alien;
"(B) the alien invested or was actively in the process of investing the requisite capital; and
"(C) the alien sustained the actions described in subparagraphs (A) and (B) throughout the period of the alien's residence in the United States."
Subsec. (f)(3).
1996—Subsec. (b)(2).
Subsec. (c)(2)(B).
Subsec. (c)(3)(D).
Subsec. (d)(2)(C).
1991—Subsec. (c)(2)(A).
Subsecs. (c)(3)(B), (d)(2)(A).
Effective Date of 2002 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by
Effective Date
Section effective Oct. 1, 1991, and applicable beginning with fiscal year 1992, see section 161(a) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Immigration Benefits
"SEC. 11031. REMOVAL OF CONDITIONAL BASIS OF PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHILDREN.
"(a)
"(b)
"(1)
"(A) filed, under section 204(a)(1)(H) of the Immigration and Nationality Act (
"(B) pursuant to such approval, obtained the status of an alien entrepreneur with permanent resident status on a conditional basis described in section 216A of such Act (
"(C) timely filed, in accordance with section 216A(c)(1)(A) of such Act (
"(2)
"(A)
"(B)
"(i) the alien is inadmissible or deportable on any ground; or
"(ii) the petition described in paragraph (1)(C) was denied on the ground that it contains a material misrepresentation in the facts and information described in section 216A(d)(1) of the Immigration and Nationality Act (
"(C)
"(c)
"(1)
"(A)
"(i) the petition described in subsection (b)(1)(C) contains any material misrepresentation in the facts and information described in section 216A(d)(1) of the Immigration and Nationality Act (
"(ii) subject to subparagraphs (B) and (C), such enterprise created full-time jobs for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the eligible alien and the alien's spouse, sons, or daughters), and those jobs exist or existed on any of the dates described in subparagraph (D); and
"(iii) on any of the dates described in subparagraph (D), the alien is in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (
"(B)
"(C)
"(D)
"(i) The date on which the petition described in subsection (b)(1)(C) is filed.
"(ii) 6 months after the date described in clause (i).
"(iii) The date on which the determination under subparagraph (A) or (C) is made.
"(E)
"(F)
"(i)
"(ii)
"(iii)
"(iv)
"(2)
"(A)
"(B)
"(C)
"(i)
"(ii)
"(D)
"(i)
"(ii)
"(E)
"(i) the petition contains any material misrepresentation in the facts and information alleged in the petition with respect to the commercial enterprises included in such petition;
"(ii) all such enterprises, considered together, created full-time jobs for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the eligible alien and the alien's spouse, sons, or daughters), and those jobs exist on the date on which the determination is made, except that—
"(I) this clause shall apply only if the Attorney General made an adverse determination with respect to the eligible alien under paragraph (1)(A)(ii);
"(II) the provisions of subparagraphs (B) and (C) of paragraph (1) shall apply to a determination under this clause in the same manner as they apply to a determination under paragraph (1)(A)(ii); and
"(III) if the Attorney General determined under paragraph (1)(A)(ii) that any jobs satisfying the requirement of such paragraph were created, the number of those jobs shall be subtracted from the number of jobs otherwise needed to satisfy the requirement of this clause; and
"(iii) considering all such enterprises together, on the date on which the determination is made, the eligible alien is in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (
"(I) this clause shall apply only if the Attorney General made an adverse determination with respect to the eligible alien under paragraph (1)(A)(iii); and
"(II) if the Attorney General determined under paragraph (1)(A)(iii) that any capital amount was invested that could be credited towards compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (
"(F)
"(G)
"(i)
"(ii)
"(d)
"(e)
"(f)
"SEC. 11032. CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHILDREN.
"(a)
"(b)
"(1) filed, under section 204(a)(1)(H) of the Immigration and Nationality Act (
"(2) pursuant to such approval, timely filed before the date of the enactment of this Act [Nov. 2, 2002] an application for adjustment of status under section 245 of such Act (
"(3) is not inadmissible or deportable on any ground.
"(c)
"(1)
"(2)
"(A)
"(i) failed to satisfy section 203(b)(5)(A)(ii) of the Immigration and Nationality Act (
"(ii) departed the United States without advance parole.
"(B)
"(d)
"(e)
"(1)
"(2)
"(A) the petition described in paragraph (1) contains any material misrepresentation in the facts and information alleged in the petition with respect to the commercial enterprises included in the petition;
"(B) subject to subparagraphs (B) and (C) of section 11031(c)(1), all such enterprises, considered together, created full-time jobs for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the alien and the alien's spouse, sons, or daughters), and those jobs exist or existed on either of the dates described in paragraph (3); and
"(C) considering the alien's investments in such enterprises on either of the dates described in paragraph (3), or on both such dates, the alien is or was in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (
"(3)
"(A) The date on which the application described in subsection (b)(2) was filed.
"(B) The date on which the determination under paragraph (2) is made.
"(f)
"SEC. 11033. REGULATIONS.
"The Immigration and Naturalization Service shall promulgate regulations to implement this chapter [
"SEC. 11034. DEFINITIONS.
"Except as otherwise provided, the terms used in this chapter shall have the meaning given such terms in section 101(b) of the Immigration and Nationality Act (
Section Referred to in Other Sections
This section is referred to in
§1187. Visa waiver program for certain visitors
(a) Establishment of program
The Attorney General and the Secretary of State are authorized to establish a program (hereinafter in this section referred to as the "program") under which the requirement of paragraph (7)(B)(i)(II) of
(1) Seeking entry as tourist for 90 days or less
The alien is applying for admission during the program as a nonimmigrant visitor (described in
(2) National of program country
The alien is a national of, and presents a passport issued by, a country which—
(A) extends (or agrees to extend), either on its own or in conjunction with one or more other countries that are described in subparagraph (B) and that have established with it a common area for immigration admissions, reciprocal privileges to citizens and nationals of the United States, and
(B) is designated as a pilot program country under subsection (c) of this section.
(3) Machine readable passport
(A) In general
Except as provided in subparagraph (B), on or after October 1, 2003, the alien at the time of application for admission is in possession of a valid unexpired machine-readable passport that satisfies the internationally accepted standard for machine readability.
(B) Limited waiver authority
For the period beginning October 1, 2003, and ending September 30, 2007, the Secretary of State may waive the requirement of subparagraph (A) with respect to nationals of a program country (as designated under subsection (c) of this section), if the Secretary of State finds that the program country—
(i) is making progress toward ensuring that passports meeting the requirement of subparagraph (A) are generally available to its nationals; and
(ii) has taken appropriate measures to protect against misuse of passports the country has issued that do not meet the requirement of subparagraph (A).
(4) Executes immigration forms
The alien before the time of such admission completes such immigration form as the Attorney General shall establish.
(5) Entry into the United States
If arriving by sea or air, the alien arrives at the port of entry into the United States on a carrier, including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations, or a noncommercial aircraft that is owned or operated by a domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations 1 which has entered into an agreement with the Attorney General pursuant to subsection (e) of this section. The Attorney General is authorized to require a carrier conducting operations under part 135 of title 14, Code of Federal Regulations, or a domestic corporation conducting operations under part 91 of that title, to give suitable and proper bond, in such reasonable amount and containing such conditions as the Attorney General may deem sufficient to ensure compliance with the indemnification requirements of this section, as a term of such an agreement.
(6) Not a safety threat
The alien has been determined not to represent a threat to the welfare, health, safety, or security of the United States.
(7) No previous violation
If the alien previously was admitted without a visa under this section, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant.
(8) Round-trip ticket
The alien is in possession of a round-trip transportation ticket (unless this requirement is waived by the Attorney General under regulations or the alien is arriving at the port of entry on an aircraft operated under part 135 of title 14, Code of Federal Regulations, or a noncommercial aircraft that is owned or operated by a domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations).
(9) Automated system check
The identity of the alien has been checked using an automated electronic database containing information about the inadmissibility of aliens to uncover any grounds on which the alien may be inadmissible to the United States, and no such ground has been found.
Operators of aircraft under part 135 of title 14, Code of Federal Regulations, or operators of noncommercial aircraft that are owned or operated by a domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations, carrying any alien passenger who will apply for admission under this section shall furnish such information as the Attorney General by regulation shall prescribe as necessary for the identification of any alien passenger being transported and for the enforcement of the immigration laws. Such information shall be electronically transmitted not less than one hour prior to arrival at the port of entry for purposes of checking for inadmissibility using the automated electronic database.
(b) Waiver of rights
An alien may not be provided a waiver under the program unless the alien has waived any right—
(1) to review or appeal under this chapter of an immigration officer's determination as to the admissibility of the alien at the port of entry into the United States, or
(2) to contest, other than on the basis of an application for asylum, any action for removal of the alien.
(c) Designation of program countries
(1) In general
The Attorney General, in consultation with the Secretary of State, may designate any country as a program country if it meets the requirements of paragraph (2).
(2) Qualifications
Except as provided in subsection (f) of this section, a country may not be designated as a program country unless the following requirements are met:
(A) Low nonimmigrant visa refusal rate
Either—
(i) the average number of refusals of nonimmigrant visitor visas for nationals of that country during—
(I) the two previous full fiscal years was less than 2.0 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during those years; and
(II) either of such two previous full fiscal years was less than 2.5 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during that year; or
(ii) such refusal rate for nationals of that country during the previous full fiscal year was less than 3.0 percent.
(B) Machine readable passport program
(i) In general
Subject to clause (ii), the government of the country certifies that it issues to its citizens machine-readable passports that satisfy the internationally accepted standard for machine readability.
(ii) Deadline for compliance for certain countries
In the case of a country designated as a program country under this subsection prior to May 1, 2000, as a condition on the continuation of that designation, the country—
(I) shall certify, not later than October 1, 2000, that it has a program to issue machine-readable passports to its citizens not later than October 1, 2003; and
(II) shall satisfy the requirement of clause (i) not later than October 1, 2003.
(C) Law enforcement and security interests
The Attorney General, in consultation with the Secretary of State—
(i) evaluates the effect that the country's designation would have on the law enforcement and security interests of the United States (including the interest in enforcement of the immigration laws of the United States and the existence and effectiveness of its agreements and procedures for extraditing to the United States individuals, including its own nationals, who commit crimes that violate United States law);
(ii) determines that such interests would not be compromised by the designation of the country; and
(iii) submits a written report to the Committee on the Judiciary and the Committee on International Relations of the House of Representatives and the Committee on the Judiciary and the Committee on Foreign Relations of the Senate regarding the country's qualification for designation that includes an explanation of such determination.
(D) Reporting passport thefts
The government of the country certifies that it reports to the United States Government on a timely basis the theft of blank passports issued by that country.
(3) Continuing and subsequent qualifications
For each fiscal year after the initial period—
(A) Continuing qualification
In the case of a country which was a program country in the previous fiscal year, a country may not be designated as a program country unless the sum of—
(i) the total of the number of nationals of that country who were denied admission at the time of arrival or withdrew their application for admission during such previous fiscal year as a nonimmigrant visitor, and
(ii) the total number of nationals of that country who were admitted as nonimmigrant visitors during such previous fiscal year and who violated the terms of such admission,
was less than 2 percent of the total number of nationals of that country who applied for admission as nonimmigrant visitors during such previous fiscal year.
(B) New countries
In the case of another country, the country may not be designated as a program country unless the following requirements are met:
(i) Low nonimmigrant visa refusal rate in previous 2-year period
The average number of refusals of nonimmigrant visitor visas for nationals of that country during the two previous full fiscal years was less than 2 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during those years.
(ii) Low nonimmigrant visa refusal rate in each of the 2 previous years
The average number of refusals of nonimmigrant visitor visas for nationals of that country during either of such two previous full fiscal years was less than 2.5 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during that year.
(4) Initial period
For purposes of paragraphs (2) and (3), the term "initial period" means the period beginning at the end of the 30-day period described in subsection (b)(1) of this section and ending on the last day of the first fiscal year which begins after such 30-day period.
(5) Written reports on continuing qualification; designation terminations
(A) Periodic evaluations
(i) In general
The Attorney General, in consultation with the Secretary of State, periodically (but not less than once every 2 years)—
(I) shall evaluate the effect of each program country's continued designation on the law enforcement and security interests of the United States (including the interest in enforcement of the immigration laws of the United States and the existence and effectiveness of its agreements and procedures for extraditing to the United States individuals, including its own nationals, who commit crimes that violate United States law);
(II) shall determine, based upon the evaluation in subclause (I), whether any such designation ought to be continued or terminated under subsection (d) of this section; and
(III) shall submit a written report to the Committee on the Judiciary and the Committee on International Relations of the House of Representatives and the Committee on the Judiciary and the Committee on Foreign Relations of the Senate regarding the continuation or termination of the country's designation that includes an explanation of such determination and the effects described in subclause (I).
(ii) Effective date
A termination of the designation of a country under this subparagraph shall take effect on the date determined by the Attorney General, in consultation with the Secretary of State.
(iii) Redesignation
In the case of a termination under this subparagraph, the Attorney General shall redesignate the country as a program country, without regard to subsection (f) of this section or paragraph (2) or (3), when the Attorney General, in consultation with the Secretary of State, determines that all causes of the termination have been eliminated.
(B) Emergency termination
(i) In general
In the case of a program country in which an emergency occurs that the Attorney General, in consultation with the Secretary of State, determines threatens the law enforcement or security interests of the United States (including the interest in enforcement of the immigration laws of the United States), the Attorney General shall immediately terminate the designation of the country as a program country.
(ii) Definition
For purposes of clause (i), the term "emergency" means—
(I) the overthrow of a democratically elected government;
(II) war (including undeclared war, civil war, or other military activity) on the territory of the program country;
(III) a severe breakdown in law and order affecting a significant portion of the program country's territory;
(IV) a severe economic collapse in the program country; or
(V) any other extraordinary event in the program country that threatens the law enforcement or security interests of the United States (including the interest in enforcement of the immigration laws of the United States) and where the country's participation in the program could contribute to that threat.
(iii) Redesignation
The Attorney General may redesignate the country as a program country, without regard to subsection (f) of this section or paragraph (2) or (3), when the Attorney General, in consultation with the Secretary of State, determines that—
(I) at least 6 months have elapsed since the effective date of the termination;
(II) the emergency that caused the termination has ended; and
(III) the average number of refusals of nonimmigrant visitor visas for nationals of that country during the period of termination under this subparagraph was less than 3.0 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during such period.
(C) Treatment of nationals after termination
For purposes of this paragraph—
(i) nationals of a country whose designation is terminated under subparagraph (A) or (B) shall remain eligible for a waiver under subsection (a) of this section until the effective date of such termination; and
(ii) a waiver under this section that is provided to such a national for a period described in subsection (a)(1) of this section shall not, by such termination, be deemed to have been rescinded or otherwise rendered invalid, if the waiver is granted prior to such termination.
(6) Computation of visa refusal rates
For purposes of determining the eligibility of a country to be designated as a program country, the calculation of visa refusal rates shall not include any visa refusals which incorporate any procedures based on, or are otherwise based on, race, sex, or disability, unless otherwise specifically authorized by law or regulation. No court shall have jurisdiction under this paragraph to review any visa refusal, the denial of admission to the United States of any alien by the Attorney General, the Secretary's computation of the visa refusal rate, or the designation or nondesignation of any country.
(7) Visa waiver information
(A) In general
In refusing the application of nationals of a program country for United States visas, or the applications of nationals of a country seeking entry into the visa waiver program, a consular officer shall not knowingly or intentionally classify the refusal of the visa under a category that is not included in the calculation of the visa refusal rate only so that the percentage of that country's visa refusals is less than the percentage limitation applicable to qualification for participation in the visa waiver program.
(B) Reporting requirement
On May 1 of each year, for each country under consideration for inclusion in the visa waiver program, the Secretary of State shall provide to the appropriate congressional committees—
(i) the total number of nationals of that country that applied for United States visas in that country during the previous calendar year;
(ii) the total number of such nationals who received United States visas during the previous calendar year;
(iii) the total number of such nationals who were refused United States visas during the previous calendar year;
(iv) the total number of such nationals who were refused United States visas during the previous calendar year under each provision of this chapter under which the visas were refused; and
(v) the number of such nationals that were refused under
(C) Certification
Not later than May 1 of each year, the United States chief of mission, acting or permanent, to each country under consideration for inclusion in the visa waiver program shall certify to the appropriate congressional committees that the information described in subparagraph (B) is accurate and provide a copy of that certification to those committees.
(D) Consideration of countries in the visa waiver program
Upon notification to the Attorney General that a country is under consideration for inclusion in the visa waiver program, the Secretary of State shall provide all of the information described in subparagraph (B) to the Attorney General.
(E) Definition
In this paragraph, the term "appropriate congressional committees" means the Committee on the Judiciary and the Committee on Foreign Relations of the Senate and the Committee on the Judiciary and the Committee on International Relations of the House of Representatives.
(d) Authority
Notwithstanding any other provision of this section, the Attorney General, in consultation with the Secretary of State, may for any reason (including national security) refrain from waiving the visa requirement in respect to nationals of any country which may otherwise qualify for designation or may, at any time, rescind any waiver or designation previously granted under this section.
(e) Carrier agreements
(1) In general
The agreement referred to in subsection (a)(4) of this section is an agreement between a carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title and the Attorney General under which the carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title agrees, in consideration of the waiver of the visa requirement with respect to a nonimmigrant visitor under the program—
(A) to indemnify the United States against any costs for the transportation of the alien from the United States if the visitor is refused admission to the United States or remains in the United States unlawfully after the 90-day period described in subsection (a)(1)(A) of this section,
(B) to submit daily to immigration officers any immigration forms received with respect to nonimmigrant visitors provided a waiver under the program,
(C) to be subject to the imposition of fines resulting from the transporting into the United States of a national of a designated country without a passport pursuant to regulations promulgated by the Attorney General, and
(D) to collect, provide, and share passenger data as required under subsection (h)(1)(B) of this section.
(2) Termination of agreements
The Attorney General may terminate an agreement under paragraph (1) with five days' notice to the carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title for the failure by a carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title to meet the terms of such agreement.
(3) Business aircraft requirements
(A) In general
For purposes of this section, a domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations 2 that owns or operates a noncommercial aircraft is a corporation that is organized under the laws of any of the States of the United States or the District of Columbia and is accredited by or a member of a national organization that sets business aviation standards. The Attorney General shall prescribe by regulation the provision of such information as the Attorney General deems necessary to identify the domestic corporation, its officers, employees, shareholders, its place of business, and its business activities.
(B) Collections
In addition to any other fee authorized by law, the Attorney General is authorized to charge and collect, on a periodic basis, an amount from each domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations, for nonimmigrant visa waiver admissions on noncommercial aircraft owned or operated by such domestic corporation equal to the total amount of fees assessed for issuance of nonimmigrant visa waiver arrival/departure forms at land border ports of entry. All fees collected under this paragraph shall be deposited into the Immigration User Fee Account established under
(f) Duration and termination of designation
(1) In general
(A) Determination and notification of disqualification rate
Upon determination by the Attorney General that a program country's disqualification rate is 2 percent or more, the Attorney General shall notify the Secretary of State.
(B) Probationary status
If the program country's disqualification rate is greater than 2 percent but less than 3.5 percent, the Attorney General shall place the program country in probationary status for a period not to exceed 2 full fiscal years following the year in which the determination under subparagraph (A) is made.
(C) Termination of designation
Subject to paragraph (3), if the program country's disqualification rate is 3.5 percent or more, the Attorney General shall terminate the country's designation as a program country effective at the beginning of the second fiscal year following the fiscal year in which the determination under subparagraph (A) is made.
(2) Termination of probationary status
(A) In general
If the Attorney General determines at the end of the probationary period described in paragraph (1)(B) that the program country placed in probationary status under such paragraph has failed to develop a machine-readable passport program as required by section 3 (c)(2)(C) of this section, or has a disqualification rate of 2 percent or more, the Attorney General shall terminate the designation of the country as a program country. If the Attorney General determines that the program country has developed a machine-readable passport program and has a disqualification rate of less than 2 percent, the Attorney General shall redesignate the country as a program country.
(B) Effective date
A termination of the designation of a country under subparagraph (A) shall take effect on the first day of the first fiscal year following the fiscal year in which the determination under such subparagraph is made. Until such date, nationals of the country shall remain eligible for a waiver under subsection (a) of this section.
(3) Nonapplicability of certain provisions
Paragraph (1)(C) shall not apply unless the total number of nationals of a program country described in paragraph (4)(A) exceeds 100.
(4) "Disqualification rate" defined
For purposes of this subsection, the term "disqualification rate" means the percentage which—
(A) the total number of nationals of the program country who were—
(i) denied admission at the time of arrival or withdrew their application for admission during the most recent fiscal year for which data are available; and
(ii) admitted as nonimmigrant visitors during such fiscal year and who violated the terms of such admission; bears to
(B) the total number of nationals of such country who applied for admission as nonimmigrant visitors during such fiscal year.
(5) Failure to report passport thefts
If the Attorney General and the Secretary of State jointly determine that the program country is not reporting the theft of blank passports, as required by subsection (c)(2)(D) of this section, the Attorney General shall terminate the designation of the country as a program country.
(g) Visa application sole method to dispute denial of waiver based on a ground of inadmissibility
In the case of an alien denied a waiver under the program by reason of a ground of inadmissibility described in
(h) Use of information technology systems
(1) Automated entry-exit control system
(A) System
Not later than October 1, 2001, the Attorney General shall develop and implement a fully automated entry and exit control system that will collect a record of arrival and departure for every alien who arrives and departs by sea or air at a port of entry into the United States and is provided a waiver under the program.
(B) Requirements
The system under subparagraph (A) shall satisfy the following requirements:
(i) Data collection by carriers
Not later than October 1, 2001, the records of arrival and departure described in subparagraph (A) shall be based, to the maximum extent practicable, on passenger data collected and electronically transmitted to the automated entry and exit control system by each carrier that has an agreement under subsection (a)(4) of this section.
(ii) Data provision by carriers
Not later than October 1, 2002, no waiver may be provided under this section to an alien arriving by sea or air at a port of entry into the United States on a carrier unless the carrier is electronically transmitting to the automated entry and exit control system passenger data determined by the Attorney General to be sufficient to permit the Attorney General to carry out this paragraph.
(iii) Calculation
The system shall contain sufficient data to permit the Attorney General to calculate, for each program country and each fiscal year, the portion of nationals of that country who are described in subparagraph (A) and for whom no record of departure exists, expressed as a percentage of the total number of such nationals who are so described.
(C) Reporting
(i) Percentage of nationals lacking departure record
As part of the annual report required to be submitted under
(ii) System effectiveness
Not later than December 31, 2004, the Attorney General shall submit a written report to the Committee on the Judiciary of the United States House of Representatives and of the Senate containing the following:
(I) The conclusions of the Attorney General regarding the effectiveness of the automated entry and exit control system to be developed and implemented under this paragraph.
(II) The recommendations of the Attorney General regarding the use of the calculation described in subparagraph (B)(iii) as a basis for evaluating whether to terminate or continue the designation of a country as a program country.
The report required by this clause may be combined with the annual report required to be submitted on that date under
(2) Automated data sharing system
(A) System
The Attorney General and the Secretary of State shall develop and implement an automated data sharing system that will permit them to share data in electronic form from their respective records systems regarding the admissibility of aliens who are nationals of a program country.
(B) Requirements
The system under subparagraph (A) shall satisfy the following requirements:
(i) Supplying information to immigration officers conducting inspections at ports of entry
Not later than October 1, 2002, the system shall enable immigration officers conducting inspections at ports of entry under
(I) any photograph of the alien that may be contained in the records of the Department of State or the Service; and
(II) information on whether the alien has ever been determined to be ineligible to receive a visa or ineligible to be admitted to the United States.
(ii) Supplying photographs of inadmissible aliens
The system shall permit the Attorney General electronically to obtain any photograph contained in the records of the Secretary of State pertaining to an alien who is a national of a program country and has been determined to be ineligible to receive a visa.
(iii) Maintaining records on applications for admission
The system shall maintain, for a minimum of 10 years, information about each application for admission made by an alien seeking a waiver under the program, including the following:
(I) The name or Service identification number of each immigration officer conducting the inspection of the alien at the port of entry.
(II) Any information described in clause (i) that is obtained from the system by any such officer.
(III) The results of the application.
(June 27, 1952, ch. 477, title II, ch. 2, §217, as added
Amendments
2002—Subsec. (c)(2)(D).
Subsec. (c)(5)(A)(i).
Subsec. (f)(5).
2001—Subsec. (a)(3).
2000—
Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(2)(A).
Subsec. (a)(3), (4).
Subsec. (a)(5).
Subsec. (a)(6), (7).
Subsec. (a)(8).
Subsec. (a)(9).
Subsec. (b).
Subsec. (c).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (c)(2)(B).
Subsec. (c)(2)(C).
Subsec. (c)(3).
Subsec. (c)(3)(A).
Subsec. (c)(3)(B).
Subsec. (c)(5).
Subsec. (c)(6).
Subsec. (c)(7).
Subsec. (e)(1).
Subsec. (e)(1)(B).
Subsec. (e)(1)(D).
Subsec. (e)(2).
Subsec. (e)(3).
Subsec. (f).
Subsec. (f)(1)(A), (C).
Subsec. (f)(2) to (4).
Subsec. (g).
Subsec. (h).
1998—Subsec. (c)(2).
Subsec. (f).
1997—Subsec. (f).
1996—Subsec. (a).
Subsec. (a)(2)(B).
Subsec. (b)(2).
Subsec. (c)(1).
Subsec. (c)(3)(A)(i).
Subsec. (d).
Subsec. (f).
Subsec. (g).
Subsec. (g)(4)(A)(i).
1994—Subsec. (a)(2)(B).
Subsec. (c)(2).
Subsec. (f).
Subsec. (g).
1991—Subsec. (a).
Subsec. (a)(4).
Subsec. (b).
Subsec. (e)(1).
1990—Subsec. (a)(2).
Subsec. (a)(3).
"(A) completes such immigration form as the Attorney General shall establish under subsection (b)(3) of this section, and
"(B) executes a waiver of review and appeal described in subsection (b)(4) of this section".
Subsec. (a)(4).
Subsec. (a)(7).
Subsec. (b).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (d).
Subsec. (e).
Subsec. (f).
1988—
Subsec. (a).
Effective Date of 1996 Amendment
Amendment by section 308(d)(4)(F), (e)(9) of
Effective Date of 1991 Amendment
Amendment by section 303(a)(1), (2) of
Section 307(l) of
Effective Date of 1990 Amendment
Section 201(d) of
Effective Date of 1988 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Machine Readable Passports
"(a)
"(1) perform annual audits of the implementation of section 217(c)(2)(B) of the Immigration and Nationality Act (
"(2) check for the implementation of precautionary measures to prevent the counterfeiting and theft of passports; and
"(3) ascertain that countries designated under the visa waiver program have established a program to develop tamper-resistant passports.
"(b)
Report Required
Transition Provisions
Section 635(c)(2) of div. C of
Operation of Automated Data Arrival and Departure Control System; Report to Congress
Section 201(c) of
Report on Visa Waiver Pilot Program
Section 405 of
"(a)
"(b)
"(1) an evaluation of the program, including its impact—
"(A) on the control of alien visitors to the United States,
"(B) on consular operations in the countries designated under the program, as well as on consular operations in other countries in which additional consular personnel have been relocated as a result of the implementation of the program, and
"(C) on the United States tourism industry; and
"(2) recommendations—
"(A) on extending the pilot program period, and
"(B) on increasing the number of countries that may be designated under the program."
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by a comma.
2 So in original. Probably should be followed by a comma.
3 So in original. Probably should be "subsection".
§1188. Admission of temporary H–2A workers
(a) Conditions for approval of H–2A petitions
(1) A petition to import an alien as an H–2A worker (as defined in subsection (i)(2) of this section) may not be approved by the Attorney General unless the petitioner has applied to the Secretary of Labor for a certification that—
(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and
(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.
(2) The Secretary of Labor may require by regulation, as a condition of issuing the certification, the payment of a fee to recover the reasonable costs of processing applications for certification.
(b) Conditions for denial of labor certification
The Secretary of Labor may not issue a certification under subsection (a) of this section with respect to an employer if the conditions described in that subsection are not met or if any of the following conditions are met:
(1) There is a strike or lockout in the course of a labor dispute which, under the regulations, precludes such certification.
(2)(A) The employer during the previous two-year period employed H–2A workers and the Secretary of Labor has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of the labor certification with respect to the employment of domestic or nonimmigrant workers.
(B) No employer may be denied certification under subparagraph (A) for more than three years for any violation described in such subparagraph.
(3) The employer has not provided the Secretary with satisfactory assurances that if the employment for which the certification is sought is not covered by State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State workers' compensation law for comparable employment.
(4) The Secretary determines that the employer has not made positive recruitment efforts within a multi-state region of traditional or expected labor supply where the Secretary finds that there are a significant number of qualified United States workers who, if recruited, would be willing to make themselves available for work at the time and place needed. Positive recruitment under this paragraph is in addition to, and shall be conducted within the same time period as, the circulation through the interstate employment service system of the employer's job offer. The obligation to engage in positive recruitment under this paragraph shall terminate on the date the H–2A workers depart for the employer's place of employment.
(c) Special rules for consideration of applications
The following rules shall apply in the case of the filing and consideration of an application for a labor certification under this section:
(1) Deadline for filing applications
The Secretary of Labor may not require that the application be filed more than 45 days before the first date the employer requires the labor or services of the H–2A worker.
(2) Notice within seven days of deficiencies
(A) The employer shall be notified in writing within seven days of the date of filing if the application does not meet the standards (other than that described in subsection (a)(1)(A) of this section) for approval.
(B) If the application does not meet such standards, the notice shall include the reasons therefor and the Secretary shall provide an opportunity for the prompt resubmission of a modified application.
(3) Issuance of certification
(A) The Secretary of Labor shall make, not later than 30 days before the date such labor or services are first required to be performed, the certification described in subsection (a)(1) of this section if—
(i) the employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary), and
(ii) the employer does not actually have, or has not been provided with referrals of, qualified eligible individuals who have indicated their availability to perform such labor or services on the terms and conditions of a job offer which meets the requirements of the Secretary.
In considering the question of whether a specific qualification is appropriate in a job offer, the Secretary shall apply the normal and accepted qualifications required by non-H–2A-employers in the same or comparable occupations and crops.
(B)(i) For a period of 3 years subsequent to the effective date of this section, labor certifications shall remain effective only if, from the time the foreign worker departs for the employer's place of employment, the employer will provide employment to any qualified United States worker who applies to the employer until 50 percent of the period of the work contract, under which the foreign worker who is in the job was hired, has elapsed. In addition, the employer will offer to provide benefits, wages and working conditions required pursuant to this section and regulations.
(ii) The requirement of clause (i) shall not apply to any employer who—
(I) did not, during any calendar quarter during the preceding calendar year, use more than 500 man-days of agricultural labor, as defined in
(II) is not a member of an association which has petitioned for certification under this section for its members, and
(III) has not otherwise associated with other employers who are petitioning for temporary foreign workers under this section.
(iii) Six months before the end of the 3-year period described in clause (i), the Secretary of Labor shall consider the findings of the report mandated by section 403(a)(4)(D) of the Immigration Reform and Control Act of 1986 as well as other relevant materials, including evidence of benefits to United States workers and costs to employers, addressing the advisability of continuing a policy which requires an employer, as a condition for certification under this section, to continue to accept qualified, eligible United States workers for employment after the date the H–2A workers depart for work with the employer. The Secretary's review of such findings and materials shall lead to the issuance of findings in furtherance of the Congressional policy that aliens not be admitted under this section unless there are not sufficient workers in the United States who are able, willing, and qualified to perform the labor or service needed and that the employment of the aliens in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. In the absence of the enactment of Federal legislation prior to three months before the end of the 3-year period described in clause (i) which addresses the subject matter of this subparagraph, the Secretary shall immediately publish the findings required by this clause, and shall promulgate, on an interim or final basis, regulations based on his findings which shall be effective no later than three years from the effective date of this section.
(iv) In complying with clause (i) of this subparagraph, an association shall be allowed to refer or transfer workers among its members: Provided, That for purposes of this section an association acting as an agent for its members shall not be considered a joint employer merely because of such referral or transfer.
(v) United States workers referred or transferred pursuant to clause (iv) of this subparagraph shall not be treated disparately.
(vi) An employer shall not be liable for payments under section 655.202(b)(6) of title 20, Code of Federal Regulations (or any successor regulation) with respect to an H–2A worker who is displaced due to compliance with the requirement of this subparagraph, if the Secretary of Labor certifies that the H–2A worker was displaced because of the employer's compliance with clause (i) of this subparagraph.
(vii)(I) No person or entity shall willfully and knowingly withhold domestic workers prior to the arrival of H–2A workers in order to force the hiring of domestic workers under clause (i).
(II) Upon the receipt of a complaint by an employer that a violation of subclause (I) has occurred the Secretary shall immediately investigate. He shall within 36 hours of the receipt of the complaint issue findings concerning the alleged violation. Where the Secretary finds that a violation has occurred, he shall immediately suspend the application of clause (i) of this subparagraph with respect to that certification for that date of need.
(4) Housing
Employers shall furnish housing in accordance with regulations. The employer shall be permitted at the employer's option to provide housing meeting applicable Federal standards for temporary labor camps or to secure housing which meets the local standards for rental and/or public accommodations or other substantially similar class of habitation: Provided, That in the absence of applicable local standards, State standards for rental and/or public accommodations or other substantially similar class of habitation shall be met: Provided further, That in the absence of applicable local or State standards, Federal temporary labor camp standards shall apply: Provided further, That the Secretary of Labor shall issue regulations which address the specific requirements of housing for employees principally engaged in the range production of livestock: Provided further, That when it is the prevailing practice in the area and occupation of intended employment to provide family housing, family housing shall be provided to workers with families who request it: And provided further, That nothing in this paragraph shall require an employer to provide or secure housing for workers who are not entitled to it under the temporary labor certification regulations in effect on June 1, 1986. The determination as to whether the housing furnished by an employer for an H–2A worker meets the requirements imposed by this paragraph must be made prior to the date specified in paragraph (3)(A) by which the Secretary of Labor is required to make a certification described in subsection (a)(1) of this section with respect to a petition for the importation of such worker.
(d) Roles of agricultural associations
(1) Permitting filing by agricultural associations
A petition to import an alien as a temporary agricultural worker, and an application for a labor certification with respect to such a worker, may be filed by an association of agricultural producers which use agricultural services.
(2) Treatment of associations acting as employers
If an association is a joint or sole employer of temporary agricultural workers, the certifications granted under this section to the association may be used for the certified job opportunities of any of its producer members and such workers may be transferred among its producer members to perform agricultural services of a temporary or seasonal nature for which the certifications were granted.
(3) Treatment of violations
(A) Member's violation does not necessarily disqualify association or other members
If an individual producer member of a joint employer association is determined to have committed an act that under subsection (b)(2) of this section results in the denial of certification with respect to the member, the denial shall apply only to that member of the association unless the Secretary determines that the association or other member participated in, had knowledge of, or reason to know of, the violation.
(B) Association's violation does not necessarily disqualify members
(i) If an association representing agricultural producers as a joint employer is determined to have committed an act that under subsection (b)(2) of this section results in the denial of certification with respect to the association, the denial shall apply only to the association and does not apply to any individual producer member of the association unless the Secretary determines that the member participated in, had knowledge of, or reason to know of, the violation.
(ii) If an association of agricultural producers certified as a sole employer is determined to have committed an act that under subsection (b)(2) of this section results in the denial of certification with respect to the association, no individual producer member of such association may be the beneficiary of the services of temporary alien agricultural workers admitted under this section in the commodity and occupation in which such aliens were employed by the association which was denied certification during the period such denial is in force, unless such producer member employs such aliens in the commodity and occupation in question directly or through an association which is a joint employer of such workers with the producer member.
(e) Expedited administrative appeals of certain determinations
(1) Regulations shall provide for an expedited procedure for the review of a denial of certification under subsection (a)(1) of this section or a revocation of such a certification or, at the applicant's request, for a de novo administrative hearing respecting the denial or revocation.
(2) The Secretary of Labor shall expeditiously, but in no case later than 72 hours after the time a new determination is requested, make a new determination on the request for certification in the case of an H–2A worker if able, willing, and qualified eligible individuals are not actually available at the time such labor or services are required and a certification was denied in whole or in part because of the availability of qualified workers. If the employer asserts that any eligible individual who has been referred is not able, willing, or qualified, the burden of proof is on the employer to establish that the individual referred is not able, willing, or qualified because of employment-related reasons.
(f) Violators disqualified for 5 years
An alien may not be admitted to the United States as a temporary agricultural worker if the alien was admitted to the United States as such a worker within the previous five-year period and the alien during that period violated a term or condition of such previous admission.
(g) Authorization of appropriations
(1) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, $10,000,000 for the purposes—
(A) of recruiting domestic workers for temporary labor and services which might otherwise be performed by nonimmigrants described in
(B) of monitoring terms and conditions under which such nonimmigrants (and domestic workers employed by the same employers) are employed in the United States.
(2) The Secretary of Labor is authorized to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with terms and conditions of employment under this section.
(3) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, such sums as may be necessary for the purpose of enabling the Secretary of Labor to make determinations and certifications under this section and under
(4) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, such sums as may be necessary for the purposes of enabling the Secretary of Agriculture to carry out the Secretary's duties and responsibilities under this section.
(h) Miscellaneous provisions
(1) The Attorney General shall provide for such endorsement of entry and exit documents of nonimmigrants described in
(2) The provisions of subsections (a) and (c) of
(i) Definitions
For purposes of this section:
(1) The term "eligible individual" means, with respect to employment, an individual who is not an unauthorized alien (as defined in
(2) The term "H–2A worker" means a nonimmigrant described in
(June 27, 1952, ch. 477, title II, ch. 2, §218, formerly §216, as added
References in Text
Section 403(a)(4)(D) of the Immigration Reform and Control Act of 1986, referred to in subsec. (c)(3)(B)(iii), is section 403(a)(4)(D) of
Codification
Section was classified to
Amendments
2000—Subsec. (c)(4).
1999—Subsec. (c)(1).
Subsec. (c)(3)(A).
1994—Subsec. (i)(1).
1991—Subsec. (g)(3).
Subsec. (i)(1).
1988—
Subsec. (c)(4).
Effective Date of 1994 Amendment
Section 219(z) of
Effective Date of 1991 Amendment
Section 307(l) of
Effective Date of 1988 Amendment
Amendment by
Effective Date; Regulations
Section 301(d), (e) of
"(d)
"(e)
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Sense of Congress Respecting Consultation With Mexico
Section 301(f) of
Reports on H–2A Program
Section 403 of
"(a)
"(1) the number of foreign workers permitted to be employed under the program in each year;
"(2) the compliance of employers and foreign workers with the terms and conditions of the program;
"(3) the impact of the program on the labor needs of the United States agricultural employers and on the wages and working conditions of United States agricultural workers; and
"(4) recommendations for modifications of the program, including—
"(A) improving the timeliness of decisions regarding admission of temporary foreign workers under the program,
"(B) removing any economic disincentives to hiring United States citizens or permanent resident aliens for jobs for which temporary foreign workers have been requested,
"(C) improving cooperation among government agencies, employers, employer associations, workers, unions, and other worker associations to end the dependence of any industry on a constant supply of temporary foreign workers, and
"(D) the relative benefits to domestic workers and burdens upon employers of a policy which requires employers, as a condition for certification under the program, to continue to accept qualified United States workers for employment after the date the H–2A workers depart for work with the employer.
The recommendations under subparagraph (D) shall be made in furtherance of the Congressional policy that aliens not be admitted under the H–2A program unless there are not sufficient workers in the United States who are able, willing, and qualified to perform the labor or services needed and that the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.
"(b)
[Functions of President under section 403 of
Section Referred to in Other Sections
This section is referred to in
§1189. Designation of foreign terrorist organizations
(a) Designation
(1) In general
The Secretary is authorized to designate an organization as a foreign terrorist organization in accordance with this subsection if the Secretary finds that—
(A) the organization is a foreign organization;
(B) the organization engages in terrorist activity (as defined in
(C) the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.
(2) Procedure
(A) Notice
(i) To congressional leaders
Seven days before making a designation under this subsection, the Secretary shall, by classified communication, notify the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees of the House of Representatives and the Senate, in writing, of the intent to designate an organization under this subsection, together with the findings made under paragraph (1) with respect to that organization, and the factual basis therefor.
(ii) Publication in Federal Register
The Secretary shall publish the designation in the Federal Register seven days after providing the notification under clause (i).
(B) Effect of designation
(i) For purposes of
(ii) Any designation under this subsection shall cease to have effect upon an Act of Congress disapproving such designation.
(C) Freezing of assets
Upon notification under paragraph (2)(A)(i), the Secretary of the Treasury may require United States financial institutions possessing or controlling any assets of any foreign organization included in the notification to block all financial transactions involving those assets until further directive from either the Secretary of the Treasury, Act of Congress, or order of court.
(3) Record
(A) In general
In making a designation under this subsection, the Secretary shall create an administrative record.
(B) Classified information
The Secretary may consider classified information in making a designation under this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (b) of this section.
(4) Period of designation
(A) In general
Subject to paragraphs (5) and (6), a designation under this subsection shall be effective for all purposes for a period of 2 years beginning on the effective date of the designation under paragraph (2)(B).
(B) Redesignation
The Secretary may redesignate a foreign organization as a foreign terrorist organization for an additional 2-year period at the end of the 2-year period referred to in subparagraph (A) (but not sooner than 60 days prior to the termination of such period) upon a finding that the relevant circumstances described in paragraph (1) still exist. The Secretary also may redesignate such organization at the end of any 2-year redesignation period (but not sooner than 60 days prior to the termination of such period) for an additional 2-year period upon a finding that the relevant circumstances described in paragraph (1) still exist. Any redesignation shall be effective immediately following the end of the prior 2-year designation or redesignation period unless a different effective date is provided in such redesignation. The procedural requirements of paragraphs (2) and (3) shall apply to a redesignation under this subparagraph.
(5) Revocation by Act of Congress
The Congress, by an Act of Congress, may block or revoke a designation made under paragraph (1).
(6) Revocation based on change in circumstances
(A) In general
The Secretary may revoke a designation made under paragraph (1) or a redesignation made under paragraph (4)(B) if the Secretary finds that—
(i) the circumstances that were the basis for the designation or redesignation have changed in such a manner as to warrant revocation; or
(ii) the national security of the United States warrants a revocation.
(B) Procedure
The procedural requirements of paragraphs (2) and (3) shall apply to a revocation under this paragraph. Any revocation shall take effect on the date specified in the revocation or upon publication in the Federal Register if no effective date is specified.
(7) Effect of revocation
The revocation of a designation under paragraph (5) or (6), or the revocation of a redesignation under paragraph (6), shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation.
(8) Use of designation in trial or hearing
If a designation under this subsection has become effective under paragraph (2)(B), or if a redesignation under this subsection has become effective under paragraph (4)(B), a defendant in a criminal action or an alien in a removal proceeding shall not be permitted to raise any question concerning the validity of the issuance of such designation or redesignation as a defense or an objection at any trial or hearing.
(b) Judicial review of designation
(1) In general
Not later than 30 days after publication of the designation in the Federal Register, an organization designated as a foreign terrorist organization may seek judicial review of the designation in the United States Court of Appeals for the District of Columbia Circuit.
(2) Basis of review
Review under this subsection shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation.
(3) Scope of review
The Court shall hold unlawful and set aside a designation the court finds to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;
(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2),2 or
(E) not in accord with the procedures required by law.
(4) Judicial review invoked
The pendency of an action for judicial review of a designation shall not affect the application of this section, unless the court issues a final order setting aside the designation.
(c) Definitions
As used in this section—
(1) the term "classified information" has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.);
(2) the term "national security" means the national defense, foreign relations, or economic interests of the United States;
(3) the term "relevant committees" means the Committees on the Judiciary, Intelligence, and Foreign Relations of the Senate and the Committees on the Judiciary, Intelligence, and International Relations of the House of Representatives; and
(4) the term "Secretary" means the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General.
(June 27, 1952, ch. 477, title II, ch. 2, §219, as added
References in Text
Section 1(a) of the Classified Information Procedures Act, referred to in subsec. (c)(1), is section 1(a) of
Codification
Another section 411(c) of
Amendments
2001—Subsec. (a)(1)(B).
Subsec. (a)(1)(C).
Subsec. (a)(2)(A).
"(i) notify the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees, in writing, of the intent to designate a foreign organization under this subsection, together with the findings made under paragraph (1) with respect to that organization, and the factual basis therefor; and
"(ii) seven days after such notification, publish the designation in the Federal Register."
Subsec. (a)(2)(B)(i).
Subsec. (a)(2)(C).
Subsec. (a)(3)(B).
Subsec. (a)(4)(B).
Subsec. (a)(6)(A).
Subsec. (a)(6)(A)(i).
Subsec. (a)(6)(A)(ii).
Subsec. (a)(6)(B).
Subsec. (a)(7).
Subsec. (a)(8).
1996—
Subsec. (b)(3)(D), (E).
Effective Date of 2001 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by section 356 of
Section 671(c)(7) of div. C of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
2 So in original. The comma probably should be a semicolon.
Part III—Issuance of Entry Documents
§1201. Issuance of visas
(a) Immigrants; nonimmigrants
(1) Under the conditions hereinafter prescribed and subject to the limitations prescribed in this chapter or regulations issued thereunder, a consular officer may issue
(A) to an immigrant who has made proper application therefor, an immigrant visa which shall consist of the application provided for in
(B) to a nonimmigrant who has made proper application therefor, a nonimmigrant visa, which shall specify the classification under
(2) The Secretary of State shall provide to the Service an electronic version of the visa file of each alien who has been issued a visa to ensure that the data in that visa file is available to immigration inspectors at the United States ports of entry before the arrival of the alien at such a port of entry.
(b) Registration; photographs; waiver of requirement
Each alien who applies for a visa shall be registered in connection with his application, and shall furnish copies of his photograph signed by him for such use as may be by regulations required. The requirements of this subsection may be waived in the discretion of the Secretary of State in the case of any alien who is within that class of nonimmigrants enumerated in
(c) Period of validity; requirement of visa
An immigrant visa shall be valid for such period, not exceeding six months, as shall be by regulations prescribed, except that any visa issued to a child lawfully adopted by a United States citizen and spouse while such citizen is serving abroad in the United States Armed Forces, or is employed abroad by the United States Government, or is temporarily abroad on business, shall be valid until such time, for a period not to exceed three years, as the adoptive citizen parent returns to the United States in due course of his service, employment, or business. A nonimmigrant visa shall be valid for such periods as shall be by regulations prescribed. In prescribing the period of validity of a nonimmigrant visa in the case of nationals of any foreign country who are eligible for such visas, the Secretary of State shall, insofar as practicable, accord to such nationals the same treatment upon a reciprocal basis as such foreign country accords to nationals of the United States who are within a similar class; except that in the case of aliens who are nationals of a foreign country and who either are granted refugee status and firmly resettled in another foreign country or are granted permanent residence and residing in another foreign country, the Secretary of State may prescribe the period of validity of such a visa based upon the treatment granted by that other foreign country to alien refugees and permanent residents, respectively, in the United States. An immigrant visa may be replaced under the original number during the fiscal year in which the original visa was issued for an immigrant who establishes to the satisfaction of the consular officer that he was unable to use the original immigrant visa during the period of its validity because of reasons beyond his control and for which he was not responsible: Provided, That the immigrant is found by the consular officer to be eligible for an immigrant visa and the immigrant pays again the statutory fees for an application and an immigrant visa.
(d) Physical examination
Prior to the issuance of an immigrant visa to any alien, the consular officer shall require such alien to submit to a physical and mental examination in accordance with such regulations as may be prescribed. Prior to the issuance of a nonimmigrant visa to any alien, the consular officer may require such alien to submit to a physical or mental examination, or both, if in his opinion such examination is necessary to ascertain whether such alien is eligible to receive a visa.
(e) Surrender of visa
Each immigrant shall surrender his immigrant visa to the immigration officer at the port of entry, who shall endorse on the visa the date and the port of arrival, the identity of the vessel or other means of transportation by which the immigrant arrived, and such other endorsements as may be by regulations required.
(f) Surrender of documents
Each nonimmigrant shall present or surrender to the immigration officer at the port of entry such documents as may be by regulation required. In the case of an alien crewman not in possession of any individual documents other than a passport and until such time as it becomes practicable to issue individual documents, such alien crewman may be admitted, subject to the provisions of this part, if his name appears in the crew list of the vessel or aircraft on which he arrives and the crew list is visaed by a consular officer, but the consular officer shall have the right to deny admission to any alien crewman from the crew list visa.
(g) Nonissuance of visas or other documents
No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under
(h) Nonadmission upon arrival
Nothing in this chapter shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted 1 the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under this chapter, or any other provision of law. The substance of this subsection shall appear upon every visa application.
(i) Revocation of visas or documents
After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate the visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees, shall not be penalized under
(June 27, 1952, ch. 477, title II, ch. 3, §221,
Amendments
2002—Subsec. (a).
1996—Subsec. (c).
Subsec. (f).
Subsec. (h).
1991—Subsec. (a).
1990—Subsec. (g).
1988—Subsecs. (a) to (c).
1986—Subsec. (a).
Subsec. (b).
Subsec. (c).
1981—Subsec. (a).
1965—Subsec. (a).
Subsec. (c).
Subsec. (g).
1961—Subsec. (c).
Effective Date of 1996 Amendment
Amendment by section 308(d)(4)(G), (f)(2)(B) of
Effective Date of 1991 Amendment
Section 302(e)(8) of
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1986 Amendment
Section 23(b) of
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Processing of Visa Applications
"(a)
"(b)
"(1)
"(2) K–1
Prevention of Consulate Shopping
"(a)
"(b)
"(a)
"(b)
Permitting Extension of Period of Validity of Immigrant Visas for Certain Residents of Hong Kong
Section 154 of
"(a)
"(1)
"(A) the alien elects, within the period of validity of the immigrant visa under such section, to have this section apply, and
"(B) before the date the alien seeks to be admitted to the United States for lawful permanent residence, the alien notifies the appropriate consular officer of the alien's intention to seek such admission and provides such officer with such information as the officer determines to be necessary to verify that the alien remains eligible for admission to the United States as an immigrant.
"(2)
"(3)
"(b)
"(1)(A) is chargeable under section 202 of the Immigration and Nationality Act [
"(B)(i) is residing in Hong Kong as of the date of the enactment of this Act [Nov. 29, 1990] and is issued an immigrant visa under paragraph (1), (2), (4), or (5) of section 203(a) of the Immigration and Nationality Act [
"(2) is issued a visa under section 124 of this Act [enacting provisions set out as a note under
"(c)
"(1)
"(2)
"(A) is an employee of the Foreign Broadcast Information Service in Hong Kong, or
"(B) is the spouse or child (as defined in subsection (d)) of an alien described in subparagraph (A), if accompanying or following to join the alien in coming to the United States.
"[(3) Repealed.
"(d)
[Section 154 of
Cuban Political Prisoners and Immigrants
"(a)
"(b)
"(c)
"(1) The term 'process' means the acceptance and review of applications and the preparation of necessary documents and the making of appropriate determinations with respect to such applications.
"(2) The term 'refugee' has the meaning given such term in section 101(a)(42) of the Immigration and Nationality Act [
"
"
"(b)
"(c)
"(1) The term 'process' means the acceptance and review of applications and the preparation of necessary documents and the making of appropriate determinations with respect to such applications.
"(2) The term 'refugee' has the meaning given such term in section 101(a)(42) of the Immigration and Nationality Act [
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by "to".
§1201a. Repealed. Pub. L. 99–653, §5(b), formerly §5(a)(d), Nov. 14, 1986, 100 Stat. 3656 , renumbered §5(b), Pub. L. 100–525, §8(d)(2), Oct. 24, 1988, 102 Stat. 2617
Section,
Effective Date of Repeal
Repeal applicable to applications for immigrant visas made, and visas issued, on or after Nov. 14, 1986, see section 23(b) of
§1202. Application for visas
(a) Immigrant visas
Every alien applying for an immigrant visa and for alien registration shall make application therefor in such form and manner and at such place as shall be by regulations prescribed. In the application the alien shall state his full and true name, and any other name which he has used or by which he has been known; age and sex; the date and place of his birth; and such additional information necessary to the identification of the applicant and the enforcement of the immigration and nationality laws as may be by regulations prescribed.
(b) Other documentary evidence for immigrant visa
Every alien applying for an immigrant visa shall present a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Secretary of State. The immigrant shall furnish to the consular officer with his application a copy of a certification by the appropriate police authorities stating what their records show concerning the immigrant; a certified copy of any existing prison record, military record, and record of his birth; and a certified copy of all other records or documents concerning him or his case which may be required by the consular officer. The copy of each document so furnished shall be permanently attached to the application and become a part thereof. In the event that the immigrant establishes to the satisfaction of the consular officer that any document or record required by this subsection is unobtainable, the consular officer may permit the immigrant to submit in lieu of such document or record other satisfactory evidence of the fact to which such document or record would, if obtainable, pertain.
(c) Nonimmigrant visas; nonimmigrant registration; form, manner and contents of application
Every alien applying for a nonimmigrant visa and for alien registration shall make application therefor in such form and manner as shall be by regulations prescribed. In the application the alien shall state his full and true name, the date and place of birth, his nationality, the purpose and length of his intended stay in the United States; his marital status; and such additional information necessary to the identification of the applicant, the determination of his eligibility for a nonimmigrant visa, and the enforcement of the immigration and nationality laws as may be by regulations prescribed. At the discretion of the Secretary of State, application forms for the various classes of nonimmigrant admissions described in
(d) Other documentary evidence for nonimmigrant visa
Every alien applying for a nonimmigrant visa and alien registration shall furnish to the consular officer, with his application, a certified copy of such documents pertaining to him as may be by regulations required.
(e) Signing and verification of application
Except as may be otherwise prescribed by regulations, each application for an immigrant visa shall be signed by the applicant in the presence of the consular officer, and verified by the oath of the applicant administered by the consular officer. The application for an immigrant visa, when visaed by the consular officer, shall become the immigrant visa. The application for a nonimmigrant visa or other documentation as a nonimmigrant shall be disposed of as may be by regulations prescribed. The issuance of a nonimmigrant visa shall, except as may be otherwise by regulations prescribed, be evidenced by a stamp, or other 1 placed in the alien's passport.
(f) Confidential nature of records
The records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, except that—
(1) in the discretion of the Secretary of State certified copies of such records may be made available to a court which certifies that the information contained in such records is needed by the court in the interest of the ends of justice in a case pending before the court.2
(2) the Secretary of State, in the Secretary's discretion and on the basis of reciprocity, may provide to a foreign government information in the Department of State's computerized visa lookout database and, when necessary and appropriate, other records covered by this section related to information in the database—
(A) with regard to individual aliens, at any time on a case-by-case basis for the purpose of preventing, investigating, or punishing acts that would constitute a crime in the United States, including, but not limited to, terrorism or trafficking in controlled substances, persons, or illicit weapons; or
(B) with regard to any or all aliens in the database, pursuant to such conditions as the Secretary of State shall establish in an agreement with the foreign government in which that government agrees to use such information and records for the purposes described in subparagraph (A) or to deny visas to persons who would be inadmissible to the United States.
(g) Nonimmigrant visa void at conclusion of authorized period of stay
(1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.
(2) An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except—
(A) on the basis of a visa (other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or
(B) where extraordinary circumstances are found by the Secretary of State to exist.
(June 27, 1952, ch. 477, title II, ch. 3, §222,
Amendments
2001—Subsec. (f).
1996—Subsec. (c).
Subsec. (e).
Subsec. (g).
1994—Subsec. (a).
1988—Subsec. (a).
Subsecs. (b), (e).
1986—Subsec. (b).
Subsec. (e).
1965—Subsec. (a).
1961—Subsecs. (a), (c).
Effective Date of 1996 Amendment
Section 632(b) of div. C of
"(1)
"(2)
"(A) was issued before such date; and
"(B) is not void through the application of section 222(g)(1) of the Immigration and Nationality Act, as added by subsection (a)."
Effective Date of 1994 Amendment
Section 205(b) of
Effective Date of 1988 Amendment
Amendment by section 8(e) of
Effective Date of 1986 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
2 So in original. The period probably should be "; and".
§1203. Reentry permit
(a) Application; contents
(1) Any alien lawfully admitted for permanent residence, or (2) any alien lawfully admitted to the United States pursuant to clause 6 of section 3 of the Immigration Act of 1924, between July 1, 1924, and July 5, 1932, both dates inclusive, who intends to depart temporarily from the United States may make application to the Attorney General for a permit to reenter the United States, stating the length of his intended absence or absences, and the reasons therefor. Such applications shall be made under oath, and shall be in such form, contain such information, and be accompanied by such photographs of the applicant as may be by regulations prescribed.
(b) Issuance of permit; nonrenewability
If the Attorney General finds (1) that the applicant under subsection (a)(1) of this section has been lawfully admitted to the United States for permanent residence, or that the applicant under subsection (a)(2) of this section has since admission maintained the status required of him at the time of his admission and such applicant desires to visit abroad and to return to the United States to resume the status existing at the time of his departure for such visit, (2) that the application is made in good faith, and (3) that the alien's proposed departure from the United States would not be contrary to the interests of the United States, the Attorney General may, in his discretion, issue the permit, which shall be valid for not more than two years from the date of issuance and shall not be renewable. The permit shall be in such form as shall be by regulations prescribed for the complete identification of the alien.
(c) Multiple reentries
During the period of validity, such permit may be used by the alien in making one or more applications for reentry into the United States.
(d) Presented and surrendered
Upon the return of the alien to the United States the permit shall be presented to the immigration officer at the port of entry, and upon the expiration of its validity, the permit shall be surrendered to the Service.
(e) Permit in lieu of visa
A permit issued under this section in the possession of the person to whom issued, shall be accepted in lieu of any visa which otherwise would be required from such person under this chapter. Otherwise a permit issued under this section shall have no effect under the immigration laws except to show that the alien to whom it was issued is returning from a temporary visit abroad; but nothing in this section shall be construed as making such permit the exclusive means of establishing that the alien is so returning.
(June 27, 1952, ch. 477, title II, ch. 3, §223,
References in Text
Clause (6) of section 3 of the Immigration Act of 1924, referred to in subsec. (a), which was classified to
Amendments
1981—Subsec. (b).
Effective Date of 1981 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1204. Immediate relative and special immigrant visas
A consular officer may, subject to the limitations provided in
(June 27, 1952, ch. 477, title II, ch. 3, §224,
Amendments
1965—
Effective Date of 1965 Amendment
For effective date of amendment by
§1205. Repealed. Pub. L. 87–301, §24(a)(2), Sept. 26, 1961, 75 Stat. 657
Section,
Part IV—Inspection, Apprehension, Examination, Exclusion, and Removal
Part Referred to in Other Sections
This part is referred to in
§1221. Lists of alien and citizen passengers arriving and departing
(a) Arrival manifests
For each commercial vessel or aircraft transporting any person to any seaport or airport of the United States from any place outside the United States, it shall be the duty of an appropriate official specified in subsection (d) of this section to provide to any United States border officer (as defined in subsection (i) of this section) at that port manifest information about each passenger, crew member, and other occupant transported on such vessel or aircraft prior to arrival at that port.
(b) Departure manifests
For each commercial vessel or aircraft taking passengers on board at any seaport or airport of the United States, who are destined to any place outside the United States, it shall be the duty of an appropriate official specified in subsection (d) of this section to provide any United States border officer (as defined in subsection (i) of this section) before departure from such port manifest information about each passenger, crew member, and other occupant to be transported.
(c) Contents of manifest
The information to be provided with respect to each person listed on a manifest required to be provided under subsection (a) or (b) of this section shall include—
(1) complete name;
(2) date of birth;
(3) citizenship;
(4) sex;
(5) passport number and country of issuance;
(6) country of residence;
(7) United States visa number, date, and place of issuance, where applicable;
(8) alien registration number, where applicable;
(9) United States address while in the United States; and
(10) such other information the Attorney General, in consultation with the Secretary of State, and the Secretary of Treasury determines as being necessary for the identification of the persons transported and for the enforcement of the immigration laws and to protect safety and national security.
(d) Appropriate officials specified
An appropriate official specified in this subsection is the master or commanding officer, or authorized agent, owner, or consignee, of the commercial vessel or aircraft concerned.
(e) Deadline for requirement of electronic transmission of manifest information
Not later than January 1, 2003, manifest information required to be provided under subsection (a) or (b) of this section shall be transmitted electronically by the appropriate official specified in subsection (d) of this section to an immigration officer.
(f) Prohibition
No operator of any private or public carrier that is under a duty to provide manifest information under this section shall be granted clearance papers until the appropriate official specified in subsection (d) of this section has complied with the requirements of this subsection, except that, in the case of commercial vessels or aircraft that the Attorney General determines are making regular trips to the United States, the Attorney General may, when expedient, arrange for the provision of manifest information of persons departing the United States at a later date.
(g) Penalties against noncomplying shipments, aircraft, or carriers
If it shall appear to the satisfaction of the Attorney General that an appropriate official specified in subsection (d) of this section, any public or private carrier, or the agent of any transportation line, as the case may be, has refused or failed to provide manifest information required by subsection (a) or (b) of this section, or that the manifest information provided is not accurate and full based on information provided to the carrier, such official, carrier, or agent, as the case may be, shall pay to the Commissioner the sum of $1,000 for each person with respect to whom such accurate and full manifest information is not provided, or with respect to whom the manifest information is not prepared as prescribed by this section or by regulations issued pursuant thereto. No commercial vessel or aircraft shall be granted clearance pending determination of the question of the liability to the payment of such penalty, or while it remains unpaid, and no such penalty shall be remitted or refunded, except that clearance may be granted prior to the determination of such question upon the deposit with the Commissioner of a bond or undertaking approved by the Attorney General or a sum sufficient to cover such penalty.
(h) Waiver
The Attorney General may waive the requirements of subsection (a) or (b) of this section upon such circumstances and conditions as the Attorney General may by regulation prescribe.
(i) United States border officer defined
In this section, the term "United States border officer" means, with respect to a particular port of entry into the United States, any United States official who is performing duties at that port of entry.
(j) Record of citizens and resident aliens leaving permanently for foreign countries
The Attorney General may authorize immigration officers to record the following information regarding every resident person leaving the United States by way of the Canadian or Mexican borders for permanent residence in a foreign country: Names, age, and sex; whether married or single; calling or occupation; whether able to read or write; nationality; country of birth; country of which citizen or subject; race; last permanent residence in the United States; intended future permanent residence; and time and port of last arrival in the United States; and if a United States citizen or national, the facts on which claim to that status is based.
(June 27, 1952, ch. 477, title II, ch. 4, §231,
Amendments
2002—
2001—Subsec. (a).
Subsec. (b).
Subsec. (d).
1996—Subsecs. (a), (b).
1991—Subsec. (d).
1990—Subsec. (d).
1981—Subsec. (d).
Effective Date of 2002 Amendment
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Section 543(c) of
Effective Date of 1981 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Extension to Land Carriers
"(1)
"(2)
Section Referred to in Other Sections
This section is referred to in
§1222. Detention of aliens for physical and mental examination
(a) Detention of aliens
For the purpose of determining whether aliens (including alien crewmen) arriving at ports of the United States belong to any of the classes inadmissible under this chapter, by reason of being afflicted with any of the diseases or mental or physical defects or disabilities set forth in
(b) Physical and mental examination
The physical and mental examination of arriving aliens (including alien crewmen) shall be made by medical officers of the United States Public Health Service, who shall conduct all medical examinations and shall certify, for the information of the immigration officers and the immigration judges, any physical and mental defect or disease observed by such medical officers in any such alien. If medical officers of the United States Public Health Service are not available, civil surgeons of not less than four years' professional experience may be employed for such service upon such terms as may be prescribed by the Attorney General. Aliens (including alien crewmen) arriving at ports of the United States shall be examined by at least one such medical officer or civil surgeon under such administrative regulations as the Attorney General may prescribe, and under medical regulations prepared by the Secretary of Health and Human Services. Medical officers of the United States Public Health Service who have had special training in the diagnosis of insanity and mental defects shall be detailed for duty or employed at such ports of entry as the Attorney General may designate, and such medical officers shall be provided with suitable facilities for the detention and examination of all arriving aliens who it is suspected may be inadmissible under paragraph (1) of
(c) Certification of certain helpless aliens
If an examining medical officer determines that an alien arriving in the United States is inadmissible, is helpless from sickness, mental or physical disability, or infancy, and is accompanied by another alien whose protection or guardianship may be required, the officer may certify such fact for purposes of applying
(June 27, 1952, ch. 477, title II, ch. 4, §232,
Codification
The text of
Amendments
1996—
Subsec. (a).
Subsec. (b).
Subsec. (c).
1988—
1986—
Effective Date of 1996 Amendment
Amendment by section 308(b)(2), (3)(C), (c)(2)(A), (d)(4)(H) of
Effective Date of 1988 Amendment
Section 4(c) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Designation of United States Military Physicians as Civil Surgeons
Section Referred to in Other Sections
This section is referred to in
§1223. Entry through or from foreign territory and adjacent islands
(a) Necessity of transportation contract
The Attorney General shall have power to enter into contracts with transportation lines for the inspection and admission of aliens coming to the United States from foreign territory or from adjacent islands. No such transportation line shall be allowed to land any such alien in the United States until and unless it has entered into any such contracts which may be required by the Attorney General.
(b) Landing stations
Every transportation line engaged in carrying alien passengers for hire to the United States from foreign territory or from adjacent islands shall provide and maintain at its expense suitable landing stations, approved by the Attorney General, conveniently located at the point or points of entry. No such transportation line shall be allowed to land any alien passengers in the United States until such landing stations are provided, and unless such stations are thereafter maintained to the satisfaction of the Attorney General.
(c) Landing agreements
The Attorney General shall have power to enter into contracts including bonding agreements with transportation lines to guarantee the passage through the United States in immediate and continuous transit of aliens destined to foreign countries. Notwithstanding any other provision of this chapter, such aliens may not have their classification changed under
(d) Definitions
As used in this section the terms "transportation line" and "transportation company" include, but are not limited to, the owner, charterer, consignee, or authorized agent operating any vessel or aircraft or railroad train bringing aliens to the United States, to foreign territory, or to adjacent islands.
(June 27, 1952, ch. 477, title II, ch. 4, §233, formerly §238,
Codification
Section was formerly classified to
Prior Provisions
A prior section 1223, act June 27, 1952, ch. 477, title II, ch. 4, §233,
Amendments
1996—
Subsec. (a).
Subsec. (b).
Subsec. (d).
1986—
Effective Date of 1996 Amendment
Amendment by section 308(b)(4), (f)(4) of
Effective Date of 1986 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1224. Designation of ports of entry for aliens arriving by aircraft
The Attorney General is authorized (1) by regulation to designate as ports of entry for aliens arriving by aircraft any of the ports of entry for civil aircraft designated as such in accordance with law; (2) by regulation to provide such reasonable requirements for aircraft in civil air navigation with respect to giving notice of intention to land in advance of landing, or notice of landing, as shall be deemed necessary for purposes of administration and enforcement of this chapter; and (3) by regulation to provide for the application to civil air navigation of the provisions of this chapter where not expressly so provided in this chapter to such extent and upon such conditions as he deems necessary. Any person who violates any regulation made under this section shall be subject to a civil penalty of $2,000 which may be remitted or mitigated by the Attorney General in accordance with such proceedings as the Attorney General shall by regulation prescribe. In case the violation is by the owner or person in command of the aircraft, the penalty shall be a lien upon the aircraft, and such aircraft may be libeled therefore in the appropriate United States court. The determination by the Attorney General and remission or mitigation of the civil penalty shall be final. In case the violation is by the owner or person in command of the aircraft, the penalty shall be a lien upon the aircraft and may be collected by proceedings in rem which shall conform as nearly as may be to civil suits in admiralty. The Supreme Court of the United States, and under its direction other courts of the United States, are authorized to prescribe rules regulating such proceedings against aircraft in any particular not otherwise provided by law. Any aircraft made subject to a lien by this section may be summarily seized by, and placed in the custody of such persons as the Attorney General may by regulation prescribe. The aircraft may be released from such custody upon deposit of such amount not exceeding $2,000 as the Attorney General may prescribe, or of a bond in such sum and with such sureties as the Attorney General may prescribe, conditioned upon the payment of the penalty which may be finally determined by the Attorney General.
(June 27, 1952, ch. 477, title II, ch. 4, §234, formerly §239,
Codification
Section was formerly classified to
Prior Provisions
A prior section 1224, act June 27, 1952, ch. 477, title II, ch. 4, §234,
Amendments
1991—
1990—
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1225. Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing
(a) Inspection
(1) Aliens treated as applicants for admission
An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.
(2) Stowaways
An arriving alien who is a stowaway is not eligible to apply for admission or to be admitted and shall be ordered removed upon inspection by an immigration officer. Upon such inspection if the alien indicates an intention to apply for asylum under
(3) Inspection
All aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.
(4) Withdrawal of application for admission
An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States.
(5) Statements
An applicant for admission may be required to state under oath any information sought by an immigration officer regarding the purposes and intentions of the applicant in seeking admission to the United States, including the applicant's intended length of stay and whether the applicant intends to remain permanently or become a United States citizen, and whether the applicant is inadmissible.
(b) Inspection of applicants for admission
(1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled
(A) Screening
(i) In general
If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under
(ii) Claims for asylum
If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under
(iii) Application to certain other aliens
(I) In general
The Attorney General may apply clauses (i) and (ii) of this subparagraph to any or all aliens described in subclause (II) as designated by the Attorney General. Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time.
(II) Aliens described
An alien described in this clause is an alien who is not described in subparagraph (F), who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.
(B) Asylum interviews
(i) Conduct by asylum officers
An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General.
(ii) Referral of certain aliens
If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.
(iii) Removal without further review if no credible fear of persecution
(I) In general
Subject to subclause (III), if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review.
(II) Record of determination
The officer shall prepare a written record of a determination under subclause (I). Such record shall include a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer's analysis of why, in the light of such facts, the alien has not established a credible fear of persecution. A copy of the officer's interview notes shall be attached to the written summary.
(III) Review of determination
The Attorney General shall provide by regulation and upon the alien's request for prompt review by an immigration judge of a determination under subclause (I) that the alien does not have a credible fear of persecution. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination under subclause (I).
(IV) Mandatory detention
Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.
(iv) Information about interviews
The Attorney General shall provide information concerning the asylum interview described in this subparagraph to aliens who may be eligible. An alien who is eligible for such interview may consult with a person or persons of the alien's choosing prior to the interview or any review thereof, according to regulations prescribed by the Attorney General. Such consultation shall be at no expense to the Government and shall not unreasonably delay the process.
(v) "Credible fear of persecution" defined
For purposes of this subparagraph, the term "credible fear of persecution" means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under
(C) Limitation on administrative review
Except as provided in subparagraph (B)(iii)(III), a removal order entered in accordance with subparagraph (A)(i) or (B)(iii)(I) is not subject to administrative appeal, except that the Attorney General shall provide by regulation for prompt review of such an order under subparagraph (A)(i) against an alien who claims under oath, or as permitted under penalty of perjury under
(D) Limit on collateral attacks
In any action brought against an alien under
(E) "Asylum officer" defined
As used in this paragraph, the term "asylum officer" means an immigration officer who—
(i) has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under
(ii) is supervised by an officer who meets the condition described in clause (i) and has had substantial experience adjudicating asylum applications.
(F) Exception
Subparagraph (A) shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.
(2) Inspection of other aliens
(A) In general
Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under
(B) Exception
Subparagraph (A) shall not apply to an alien—
(i) who is a crewman,
(ii) to whom paragraph (1) applies, or
(iii) who is a stowaway.
(C) Treatment of aliens arriving from contiguous territory
In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under
(3) Challenge of decision
The decision of the examining immigration officer, if favorable to the admission of any alien, shall be subject to challenge by any other immigration officer and such challenge shall operate to take the alien whose privilege to be admitted is so challenged, before an immigration judge for a proceeding under
(c) Removal of aliens inadmissible on security and related grounds
(1) Removal without further hearing
If an immigration officer or an immigration judge suspects that an arriving alien may be inadmissible under subparagraph (A) (other than clause (ii)), (B), or (C) of
(A) order the alien removed, subject to review under paragraph (2);
(B) report the order of removal to the Attorney General; and
(C) not conduct any further inquiry or hearing until ordered by the Attorney General.
(2) Review of order
(A) The Attorney General shall review orders issued under paragraph (1).
(B) If the Attorney General—
(i) is satisfied on the basis of confidential information that the alien is inadmissible under subparagraph (A) (other than clause (ii)), (B), or (C) of
(ii) after consulting with appropriate security agencies of the United States Government, concludes that disclosure of the information would be prejudicial to the public interest, safety, or security,
the Attorney General may order the alien removed without further inquiry or hearing by an immigration judge.
(C) If the Attorney General does not order the removal of the alien under subparagraph (B), the Attorney General shall specify the further inquiry or hearing that shall be conducted in the case.
(3) Submission of statement and information
The alien or the alien's representative may submit a written statement and additional information for consideration by the Attorney General.
(d) Authority relating to inspections
(1) Authority to search conveyances
Immigration officers are authorized to board and search any vessel, aircraft, railway car, or other conveyance or vehicle in which they believe aliens are being brought into the United States.
(2) Authority to order detention and delivery of arriving aliens
Immigration officers are authorized to order an owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel or aircraft bringing an alien (except an alien crewmember) to the United States—
(A) to detain the alien on the vessel or at the airport of arrival, and
(B) to deliver the alien to an immigration officer for inspection or to a medical officer for examination.
(3) Administration of oath and consideration of evidence
The Attorney General and any immigration officer shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service.
(4) Subpoena authority
(A) The Attorney General and any immigration officer shall have power to require by subpoena the attendance and testimony of witnesses before immigration officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service, and to that end may invoke the aid of any court of the United States.
(B) Any United States district court within the jurisdiction of which investigations or inquiries are being conducted by an immigration officer may, in the event of neglect or refusal to respond to a subpoena issued under this paragraph or refusal to testify before an immigration officer, issue an order requiring such persons to appear before an immigration officer, produce books, papers, and documents if demanded, and testify, and any failure to obey such order of the court may be punished by the court as a contempt thereof.
(June 27, 1952, ch. 477, title II, ch. 4, §235,
Amendments
1996—
Subsec. (b).
Subsec. (d).
1990—Subsec. (c).
Effective Date of 1996 Amendments
Amendment by section 302(a) of
Section 308(d)(5) of div. C of
Amendment by section 371(b)(4) of
Section 422(c) of
Effective Date of 1990 Amendment
Amendment by
Construction of 1996 Amendment
Section 308(d)(5) of div. C of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
GAO Study on Operation of Expedited Removal Procedures
Section 302(b) of div. C of
"(1)
"(A) the effectiveness of such procedures in deterring illegal entry,
"(B) the detention and adjudication resources saved as a result of the procedures,
"(C) the administrative and other costs expended to comply with the provision,
"(D) the effectiveness of such procedures in processing asylum claims by undocumented aliens who assert a fear of persecution, including the accuracy of credible fear determinations, and
"(E) the cooperation of other countries and air carriers in accepting and returning aliens removed under such procedures.
"(2)
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
Section Referred to in Other Sections
This section is referred to in
§1225a. Preinspection at foreign airports
(a) Establishment of preinspection stations
(1) New stations
Subject to paragraph (5), not later than October 31, 1998, the Attorney General, in consultation with the Secretary of State, shall establish and maintain preinspection stations in at least 5 of the foreign airports that are among the 10 foreign airports which the Attorney General identifies as serving as last points of departure for the greatest numbers of inadmissible alien passengers who arrive from abroad by air at ports of entry within the United States. Such preinspection stations shall be in addition to any preinspection stations established prior to September 30, 1996.
(2) Report
Not later than October 31, 1998, the Attorney General shall report to the Committees on the Judiciary of the House of Representatives and of the Senate on the implementation of paragraph (1).
(3) Data collection
Not later than November 1, 1997, and each subsequent November 1, the Attorney General shall compile data identifying—
(A) the foreign airports which served as last points of departure for aliens who arrived by air at United States ports of entry without valid documentation during the preceding fiscal years;
(B) the number and nationality of such aliens arriving from each such foreign airport; and
(C) the primary routes such aliens followed from their country of origin to the United States.
(4) Additional stations
Subject to paragraph (5), not later than October 31, 2000, the Attorney General, in consultation with the Secretary of State, shall establish preinspection stations in at least 5 additional foreign airports which the Attorney General, in consultation with the Secretary of State, determines, based on the data compiled under paragraph (3) and such other information as may be available, would most effectively reduce the number of aliens who arrive from abroad by air at points of entry within the United States who are inadmissible to the United States. Such preinspection stations shall be in addition to those established prior to September 30, 1996, or pursuant to paragraph (1).
(5) Conditions
Prior to the establishment of a preinspection station, the Attorney General, in consultation with the Secretary of State, shall ensure that—
(A) employees of the United States stationed at the preinspection station and their accompanying family members will receive appropriate protection;
(B) such employees and their families will not be subject to unreasonable risks to their welfare and safety; and
(C) the country in which the preinspection station is to be established maintains practices and procedures with respect to asylum seekers and refugees in accordance with the Convention Relating to the Status of Refugees (done at Geneva, July 28, 1951), or the Protocol Relating to the Status of Refugees (done at New York, January 31, 1967), or that an alien in the country otherwise has recourse to avenues of protection from return to persecution.
(b) Establishment of carrier consultant program
The Attorney General shall assign additional immigration officers to assist air carriers in the detection of fraudulent documents at foreign airports which, based on the records maintained pursuant to subsection (a)(3) of this section, served as a point of departure for a significant number of arrivals at United States ports of entry without valid documentation, but where no preinspection station exists.
(June 27, 1952, ch. 477, title II, ch. 4, §235A, as added
Codification
September 30, 1996, referred to in subsec. (a)(1), (4), was in the original "the date of the enactment of such Act", which was translated as meaning the date of enactment of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1226. Apprehension and detention of aliens
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization (including an "employment authorized" endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.
(b) Revocation of bond or parole
The Attorney General at any time may revoke a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien.
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in
(B) is deportable by reason of having committed any offense covered in
(C) is deportable under
(D) is inadmissible under
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to
(d) Identification of criminal aliens
(1) The Attorney General shall devise and implement a system—
(A) to make available, daily (on a 24-hour basis), to Federal, State, and local authorities the investigative resources of the Service to determine whether individuals arrested by such authorities for aggravated felonies are aliens;
(B) to designate and train officers and employees of the Service to serve as a liaison to Federal, State, and local law enforcement and correctional agencies and courts with respect to the arrest, conviction, and release of any alien charged with an aggravated felony; and
(C) which uses computer resources to maintain a current record of aliens who have been convicted of an aggravated felony, and indicates those who have been removed.
(2) The record under paragraph (1)(C) shall be made available—
(A) to inspectors at ports of entry and to border patrol agents at sector headquarters for purposes of immediate identification of any alien who was previously ordered removed and is seeking to reenter the United States, and
(B) to officials of the Department of State for use in its automated visa lookout system.
(3) Upon the request of the governor or chief executive officer of any State, the Service shall provide assistance to State courts in the identification of aliens unlawfully present in the United States pending criminal prosecution.
(e) Judicial review
The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
(June 27, 1952, ch. 477, title II, ch. 4, §236,
Amendments
1996—
Subsecs. (a) to (d).
1991—Subsec. (e)(1).
1990—Subsec. (d).
Subsec. (e).
Effective Date of 1996 Amendment
Section 303(b) of subtitle A of title III of div. C of
"(1)
"(2)
"(3)
"(A)
"(i) has been convicted of an aggravated felony (as defined under section 101(a)(43) of the Immigration and Nationality Act [
"(ii) is inadmissible by reason of having committed any offense covered in section 212(a)(2) of such Act [
"(iii) is deportable by reason of having committed any offense covered in section 241(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of such Act [former
"(iv) is inadmissible under section 212(a)(3)(B) of such Act or deportable under section 241(a)(4)(B) of such Act (before redesignation under this subtitle),
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
"(B)
"(i) the alien was lawfully admitted to the United States and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding, or
"(ii) the alien was not lawfully admitted to the United States, cannot be removed because the designated country of removal will not accept the alien, and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding."
Amendment by section 371(b)(5) of
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by section 603(a)(12) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Identification of Certain Deportable Aliens Awaiting Arraignment
"SECTION 1. PROGRAM OF IDENTIFICATION OF CERTAIN DEPORTABLE ALIENS AWAITING ARRAIGNMENT.
"(a)
"(1) Aliens unlawfully present in the United States.
"(2) Aliens described in paragraph (2) or (4) of section 237(a) of the Immigration and Nationality Act [
"(b)
"(1) the detail, to each incarceration facility selected under subsection (c), of at least one employee of the Immigration and Naturalization Service who has expertise in the identification of aliens described in subsection (a); and
"(2) provision of funds sufficient to provide for—
"(A) the detail of such employees to each selected facility on a full-time basis, including the portions of the day or night when the greatest number of individuals are incarcerated prior to arraignment;
"(B) access for such employees to records of the Service and other Federal law enforcement agencies that are necessary to identify such aliens; and
"(C) in the case of an individual identified as such an alien, pre-arraignment reporting to the court regarding the Service's intention to remove the alien from the United States.
"(c)
"(1)
"(A) The facility is owned by the government of a local political subdivision described in clause (i) or (ii) of subparagraph (C).
"(B) Such government has submitted a request for such selection to the Attorney General.
"(C) The facility is located—
"(i) in a county that is determined by the Attorney General to have a high concentration of aliens described in subsection (a); or
"(ii) in a city, town, or other analogous local political subdivision, that is determined by the Attorney General to have a high concentration of such aliens (but only in the case of a facility that is not located in a county).
"(D) The facility incarcerates or processes individuals prior to their arraignment on criminal charges.
"(2)
"(A) For fiscal year 1999, not less than 10 and not more than 25.
"(B) For fiscal year 2000, not less than 25 and not more than 50.
"(C) For fiscal year 2001, not more than 75.
"(D) For fiscal year 2002, not more than 100.
"(E) For fiscal year 2003 and subsequent fiscal years, 100, or such other number of political subdivisions as may be specified in appropriations Acts.
"(3)
"(4)
"SEC. 2. STUDY AND REPORT.
"Not later than 1 year after the date of the enactment of this Act [Dec. 5, 1997], the Attorney General shall complete a study, and submit a report to the Congress, concerning the logistical and technological feasibility of implementing the program under section 1 in a greater number of locations than those selected under such section through—
"(1) the assignment of a single Immigration and Naturalization Service employee to more than 1 incarceration facility; and
"(2) the development of a system to permit the Attorney General to conduct off-site verification, by computer or other electronic means, of the immigration status of individuals who are incarcerated in local governmental incarceration facilities prior to arraignment on criminal charges."
Criminal Alien Tracking Center
Section 130002 of
"(a)
"(b)
"(1) $3,400,000 for fiscal year 1996; and
"(2) $5,000,000 for each of fiscal years 1997 through 2001."
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "sentenced".
§1226a. Mandatory detention of suspected terrorists; habeas corpus; judicial review
(a) Detention of terrorist aliens
(1) Custody
The Attorney General shall take into custody any alien who is certified under paragraph (3).
(2) Release
Except as provided in paragraphs (5) and (6), the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. Except as provided in paragraph (6), such custody shall be maintained irrespective of any relief from removal for which the alien may be eligible, or any relief from removal granted the alien, until the Attorney General determines that the alien is no longer an alien who may be certified under paragraph (3). If the alien is finally determined not to be removable, detention pursuant to this subsection shall terminate.
(3) Certification
The Attorney General may certify an alien under this paragraph if the Attorney General has reasonable grounds to believe that the alien—
(A) is described in
(B) is engaged in any other activity that endangers the national security of the United States.
(4) Nondelegation
The Attorney General may delegate the authority provided under paragraph (3) only to the Deputy Attorney General. The Deputy Attorney General may not delegate such authority.
(5) Commencement of proceedings
The Attorney General shall place an alien detained under paragraph (1) in removal proceedings, or shall charge the alien with a criminal offense, not later than 7 days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the Attorney General shall release the alien.
(6) Limitation on indefinite detention
An alien detained solely under paragraph (1) who has not been removed under
(7) Review of certification
The Attorney General shall review the certification made under paragraph (3) every 6 months. If the Attorney General determines, in the Attorney General's discretion, that the certification should be revoked, the alien may be released on such conditions as the Attorney General deems appropriate, unless such release is otherwise prohibited by law. The alien may request each 6 months in writing that the Attorney General reconsider the certification and may submit documents or other evidence in support of that request.
(b) Habeas corpus and judicial review
(1) In general
Judicial review of any action or decision relating to this section (including judicial review of the merits of a determination made under subsection (a)(3) or (a)(6) of this section) is available exclusively in habeas corpus proceedings consistent with this subsection. Except as provided in the preceding sentence, no court shall have jurisdiction to review, by habeas corpus petition or otherwise, any such action or decision.
(2) Application
(A) In general
Notwithstanding any other provision of law, including
(i) the Supreme Court;
(ii) any justice of the Supreme Court;
(iii) any circuit judge of the United States Court of Appeals for the District of Columbia Circuit; or
(iv) any district court otherwise having jurisdiction to entertain it.
(B) Application transfer
(3) Appeals
Notwithstanding any other provision of law, including
(4) Rule of decision
The law applied by the Supreme Court and the United States Court of Appeals for the District of Columbia Circuit shall be regarded as the rule of decision in habeas corpus proceedings described in paragraph (1).
(c) Statutory construction
The provisions of this section shall not be applicable to any other provision of this chapter.
(June 27, 1952, ch. 477, title II, ch. 4, §236A, as added
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Reports
"(1) the number of aliens certified under section 236A(a)(3) of the Immigration and Nationality Act [
"(2) the grounds for such certifications;
"(3) the nationalities of the aliens so certified;
"(4) the length of the detention for each alien so certified; and
"(5) the number of aliens so certified who—
"(A) were granted any form of relief from removal;
"(B) were removed;
"(C) the Attorney General has determined are no longer aliens who may be so certified; or
"(D) were released from detention."
§1227. Deportable aliens
(a) Classes of deportable aliens
Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
(1) Inadmissible at time of entry or of adjustment of status or violates status
(A) Inadmissible aliens
Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.
(B) Present in violation of law
Any alien who is present in the United States in violation of this chapter or any other law of the United States is deportable.
(C) Violated nonimmigrant status or condition of entry
(i) Nonimmigrant status violators
Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under
(ii) Violators of conditions of entry
Any alien whom the Secretary of Health and Human Services certifies has failed to comply with terms, conditions, and controls that were imposed under
(D) Termination of conditional permanent residence
(i) In general
Any alien with permanent resident status on a conditional basis under
(ii) Exception
Clause (i) shall not apply in the cases described in
(E) Smuggling
(i) In general
Any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable.
(ii) Special rule in the case of family reunification
Clause (i) shall not apply in the case of alien who is an eligible immigrant (as defined in section 301(b)(1) of the Immigration Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative or under
(iii) Waiver authorized
The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) in the case of any alien lawfully admitted for permanent residence if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.
(F) Repealed. Pub. L. 104–208, div. C, title VI, §671(d)(1)(C), Sept. 30, 1996, 110 Stat. 3009–723
(G) Marriage fraud
An alien shall be considered to be deportable as having procured a visa or other documentation by fraud (within the meaning of
(i) the alien obtains any admission into the United States with an immigrant visa or other documentation procured on the basis of a marriage entered into less than 2 years prior to such admission of the alien and which, within 2 years subsequent to any admission of the alien in the United States, shall be judicially annulled or terminated, unless the alien establishes to the satisfaction of the Attorney General that such marriage was not contracted for the purpose of evading any provisions of the immigration laws, or
(ii) it appears to the satisfaction of the Attorney General that the alien has failed or refused to fulfill the alien's marital agreement which in the opinion of the Attorney General was made for the purpose of procuring the alien's admission as an immigrant.
(H) Waiver authorized for certain misrepresentations
The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in
(i)(I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
(II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of
(ii) is an alien who qualifies for classification under clause (iii) or (iv) of
A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.
(2) Criminal offenses
(A) General crimes
(i) Crimes of moral turpitude
Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
is deportable.
(ii) Multiple criminal convictions
Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
(iii) Aggravated felony
Any alien who is convicted of an aggravated felony at any time after admission is deportable.
(iv) High speed flight
Any alien who is convicted of a violation of
(v) Waiver authorized
Clauses (i), (ii), (iii), and (iv) shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.
(B) Controlled substances
(i) Conviction
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in
(ii) Drug abusers and addicts
Any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.
(C) Certain firearm offenses
Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in
(D) Miscellaneous crimes
Any alien who at any time has been convicted (the judgment on such conviction becoming final) of, or has been so convicted of a conspiracy or attempt to violate—
(i) any offense under
(ii) any offense under
(iii) a violation of any provision of the Military Selective Service Act (
(iv) a violation of
is deportable.
(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and
(i) Domestic violence, stalking, and child abuse
Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in
(ii) Violators of protection orders
Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term "protection order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.
(3) Failure to register and falsification of documents
(A) Change of address
An alien who has failed to comply with the provisions of
(B) Failure to register or falsification of documents
Any alien who at any time has been convicted—
(i) under
(ii) of a violation of, or an attempt or a conspiracy to violate, any provision of the Foreign Agents Registration Act of 1938 (
(iii) of a violation of, or an attempt or a conspiracy to violate,
is deportable.
(C) Document fraud
(i) In general
An alien who is the subject of a final order for violation of
(ii) Waiver authorized
The Attorney General may waive clause (i) in the case of an alien lawfully admitted for permanent residence if no previous civil money penalty was imposed against the alien under
(D) Falsely claiming citizenship
(i) In general
Any alien who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this chapter (including
(ii) Exception
In the case of an alien making a representation described in clause (i), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be deportable under any provision of this subsection based on such representation.
(4) Security and related grounds
(A) In general
Any alien who has engaged, is engaged, or at any time after admission engages in—
(i) any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,
(ii) any other criminal activity which endangers public safety or national security, or
(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means,
is deportable.
(B) Terrorist activities
Any alien who has engaged, is engaged, or at any time after admission engages in any terrorist activity (as defined in
(C) Foreign policy
(i) In general
An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.
(ii) Exceptions
The exceptions described in clauses (ii) and (iii) of
(D) Assisted in Nazi persecution or engaged in genocide
Any alien described in clause (i) or (ii) of
(5) Public charge
Any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.
(6) Unlawful voters
(A) In general
Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.
(B) Exception
In the case of an alien who voted in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen, the alien shall not be considered to be deportable under any provision of this subsection based on such violation.
(7) Waiver for victims of domestic violence
(A) In general
The Attorney General is not limited by the criminal court record and may waive the application of paragraph (2)(E)(i) (with respect to crimes of domestic violence and crimes of stalking) and (ii) in the case of an alien who has been battered or subjected to extreme cruelty and who is not and was not the primary perpetrator of violence in the relationship—
(i) upon a determination that—
(I) the alien was acting is 1 self-defense;
(II) the alien was found to have violated a protection order intended to protect the alien; or
(III) the alien committed, was arrested for, was convicted of, or pled guilty to committing a crime—
(aa) that did not result in serious bodily injury; and
(bb) where there was a connection between the crime and the alien's having been battered or subjected to extreme cruelty.
(B) Credible evidence considered
In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.
(b) Deportation of certain nonimmigrants
An alien, admitted as a nonimmigrant under the provision of either
(c) Waiver of grounds for deportation
Paragraphs (1)(A), (1)(B), (1)(C), (1)(D), and (3)(A) of subsection (a) of this section (other than so much of paragraph (1) as relates to a ground of inadmissibility described in paragraph (2) or (3) of
(June 27, 1952, ch. 477, title II, ch. 4, §237, formerly ch. 5, §241,
References in Text
Section 301 of the Immigration Act of 1990, referred to in subsec. (a)(1)(E)(ii), is section 301 of
Section 112 of the Immigration Act of 1990, referred to in subsec. (a)(1)(E)(ii), is section 112 of
The Military Selective Service Act, referred to in subsec. (a)(2)(D)(iii), is act June 24, 1948, ch. 625,
The Trading With the Enemy Act, referred to in subsec. (a)(2)(D)(iii), is act Oct. 6, 1917, ch. 106,
The Alien Registration Act, 1940, referred to in subsec. (a)(3)(B)(i), is act June 28, 1940, ch. 439,
The Foreign Agents Registration Act of 1938, referred to in subsec. (a)(3)(B)(ii), is act June 8, 1938, ch. 327,
Codification
Section was formerly classified to
Prior Provisions
A prior section 1227, acts June 27, 1952, ch. 477, title II, ch. 4, §237,
Amendments
2001—Subsec. (a)(4)(B).
2000—Subsec. (a)(1)(H).
Subsec. (a)(3)(D).
Subsec. (a)(6).
Subsec. (a)(7).
1996—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(1)(A).
Subsec. (a)(1)(B).
Subsec. (a)(1)(E)(iii).
Subsec. (a)(1)(F).
Subsec. (a)(1)(G).
Subsec. (a)(1)(H).
Subsec. (a)(2)(A)(i)(I).
Subsec. (a)(2)(A)(i)(II).
Subsec. (a)(2)(A)(ii), (iii).
Subsec. (a)(2)(A)(iv).
Subsec. (a)(2)(A)(v).
Subsec. (a)(2)(B).
Subsec. (a)(2)(C).
Subsec. (a)(2)(E).
Subsec. (a)(2)(E)(i), (ii).
Subsec. (a)(3)(C).
Subsec. (a)(3)(D).
Subsec. (a)(4)(A), (B).
Subsec. (a)(4)(C)(ii).
Subsec. (a)(6).
Subsec. (c).
Subsec. (d).
1994—Subsec. (a)(2)(A)(i)(I).
Subsec. (a)(2)(C).
Subsec. (a)(3)(B)(ii), (iii).
Subsec. (c).
1991—Subsec. (a).
Subsec. (a)(1)(D)(i).
Subsec. (a)(1)(E)(i).
Subsec. (a)(1)(E)(ii), (iii).
Subsec. (a)(1)(G).
Subsec. (a)(1)(H).
Subsec. (a)(2)(D).
Subsec. (a)(3)(C).
Subsec. (a)(4)(A), (B).
Subsec. (a)(4)(C).
Subsec. (c).
Subsec. (d).
Subsec. (h).
1990—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (e).
Subsecs. (f), (g).
Subsec. (h).
1988—Subsec. (a)(4).
Subsec. (a)(14).
Subsec. (a)(17).
Subsec. (a)(20).
1986—Subsec. (a)(9).
Subsec. (a)(10).
Subsec. (a)(11).
Subsec. (a)(20).
Subsec. (g).
1981—Subsec. (f).
1978—Subsec. (a)(19).
1976—Subsec. (a)(10).
1965—Subsec. (a)(10).
1961—Subsec. (f).
1960—Subsec. (a)(11).
1956—Subsec. (a)(11). Act July 18, 1956, §301(b), included conspiracy to violate any narcotic law, and the illicit possession of narcotics, as additional grounds for deportation.
Subsec. (b). Act July 18, 1956, §301(c), inserted at end "The provisions of this subsection shall not apply in the case of any alien who is charged with being deportable from the United States under subsection (a)(11) of this section."
Effective Date of 2001 Amendment
Amendment by
Effective Date of 2000 Amendment
Effective Date of 1996 Amendments
Amendment by sections 301(d), 305(a)(2), and 308(d)(2)(A)–(C), (3)(A), (e)(1)(E), (2)(C), (f)(1)(L)–(N), (5) of
Section 308(d)(2)(D) of div. C of
Amendment by section 344(b) of
Amendment by section 347(b) of
Section 350(b) of div. C of
Amendment by section 351(b) of
Amendment by section 671(a)(4)(B) of
Section 414(b) of
Section 435(b) of
Effective Date of 1994 Amendment
Amendment by section 203(b) of
Amendment by section 219(g) of
Effective Date of 1991 Amendment
Amendment by sections 302(d)(3), 307(h) of
Section 307(k) of
Effective Date of 1990 Amendment
Amendment by section 153(b)(1) of
Section 153(b)(2) of
Section 505(b) of
Section 508(b) of
Section 544(d), formerly (c), of
Section 602(d) of
Effective Date of 1988 Amendments
Section 7344(b) of
Section 7348(b) of
Amendment by section 2(n)(2) of
Effective Date of 1986 Amendments
Amendment by
Amendment by
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Effective Date of 1956 Amendment
Amendment by act July 18, 1956, effective July 19, 1956, see section 401 of act July 18, 1956.
Savings Provision
Section 602(c) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Report on Criminal Aliens
Section 510 of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "in".
§1228. Expedited removal of aliens convicted of committing aggravated felonies
(a) Removal of criminal aliens
(1) in general
The Attorney General shall provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens convicted of any criminal offense covered in
(2) Implementation
With respect to an alien convicted of an aggravated felony who is taken into custody by the Attorney General pursuant to
(3) Expedited proceedings
(A) Notwithstanding any other provision of law, the Attorney General shall provide for the initiation and, to the extent possible, the completion of removal proceedings, and any administrative appeals thereof, in the case of any alien convicted of an aggravated felony before the alien's release from incarceration for the underlying aggravated felony.
(B) Nothing in this section shall be construed as requiring the Attorney General to effect the removal of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined.
(4) Review
(A) The Attorney General shall review and evaluate removal proceedings conducted under this section.
(B) The Comptroller General shall monitor, review, and evaluate removal proceedings conducted under this section. Within 18 months after the effective date of this section, the Comptroller General shall submit a report to such Committees concerning the extent to which removal proceedings conducted under this section may adversely affect the ability of such aliens to contest removal effectively.
(b) Removal of aliens who are not permanent residents
(1) The Attorney General may, in the case of an alien described in paragraph (2), determine the deportability of such alien under
(2) An alien is described in this paragraph if the alien—
(A) was not lawfully admitted for permanent residence at the time at which proceedings under this section commenced; or
(B) had permanent resident status on a conditional basis (as described in
(3) The Attorney General may not execute any order described in paragraph (1) until 14 calendar days have passed from the date that such order was issued, unless waived by the alien, in order that the alien has an opportunity to apply for judicial review under
(4) Proceedings before the Attorney General under this subsection shall be in accordance with such regulations as the Attorney General shall prescribe. The Attorney General shall provide that—
(A) the alien is given reasonable notice of the charges and of the opportunity described in subparagraph (C);
(B) the alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as the alien shall choose;
(C) the alien has a reasonable opportunity to inspect the evidence and rebut the charges;
(D) a determination is made for the record that the individual upon whom the notice for the proceeding under this section is served (either in person or by mail) is, in fact, the alien named in such notice;
(E) a record is maintained for judicial review; and
(F) the final order of removal is not adjudicated by the same person who issues the charges.
(5) No alien described in this section shall be eligible for any relief from removal that the Attorney General may grant in the Attorney General's discretion.
(c) 1 Presumption of deportability
An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States.
(c) 1 Judicial removal
(1) Authority
Notwithstanding any other provision of this chapter, a United States district court shall have jurisdiction to enter a judicial order of removal at the time of sentencing against an alien who is deportable, if such an order has been requested by the United States Attorney with the concurrence of the Commissioner and if the court chooses to exercise such jurisdiction.
(2) Procedure
(A) The United States Attorney shall file with the United States district court, and serve upon the defendant and the Service, prior to commencement of the trial or entry of a guilty plea a notice of intent to request judicial removal.
(B) Notwithstanding section 1252b 2 of this title, the United States Attorney, with the concurrence of the Commissioner, shall file at least 30 days prior to the date set for sentencing a charge containing factual allegations regarding the alienage of the defendant and identifying the crime or crimes which make the defendant deportable under
(C) If the court determines that the defendant has presented substantial evidence to establish prima facie eligibility for relief from removal under this chapter, the Commissioner shall provide the court with a recommendation and report regarding the alien's eligibility for relief. The court shall either grant or deny the relief sought.
(D)(i) The alien shall have a reasonable opportunity to examine the evidence against him or her, to present evidence on his or her own behalf, and to cross-examine witnesses presented by the Government.
(ii) The court, for the purposes of determining whether to enter an order described in paragraph (1), shall only consider evidence that would be admissible in proceedings conducted pursuant to
(iii) Nothing in this subsection shall limit the information a court of the United States may receive or consider for the purposes of imposing an appropriate sentence.
(iv) The court may order the alien removed if the Attorney General demonstrates that the alien is deportable under this chapter.
(3) Notice, appeal, and execution of judicial order of removal
(A)(i) A judicial order of removal or denial of such order may be appealed by either party to the court of appeals for the circuit in which the district court is located.
(ii) Except as provided in clause (iii), such appeal shall be considered consistent with the requirements described in
(iii) Upon execution by the defendant of a valid waiver of the right to appeal the conviction on which the order of removal is based, the expiration of the period described in
(B) As soon as is practicable after entry of a judicial order of removal, the Commissioner shall provide the defendant with written notice of the order of removal, which shall designate the defendant's country of choice for removal and any alternate country pursuant to section 1253(a) 2 of this title.
(4) Denial of judicial order
Denial of a request for a judicial order of removal shall not preclude the Attorney General from initiating removal proceedings pursuant to
(5) Stipulated judicial order of removal
The United States Attorney, with the concurrence of the Commissioner, may, pursuant to Federal Rule of Criminal Procedure 11, enter into a plea agreement which calls for the alien, who is deportable under this chapter, to waive the right to notice and a hearing under this section, and stipulate to the entry of a judicial order of removal from the United States as a condition of the plea agreement or as a condition of probation or supervised release, or both. The United States district court, in both felony and misdemeanor cases, and a United States magistrate judge in misdemeanor cases, may accept such a stipulation and shall have jurisdiction to enter a judicial order of removal pursuant to the terms of such stipulation.
(June 27, 1952, ch. 477, title II, ch. 4, §238, formerly ch. 5, §242A, as added
References in Text
For effective date of this section, referred to in subsec. (a)(4)(B), see Effective Date note below.
Federal Rule of Criminal Procedure 11, referred to in subsec. (c)(5), is set out in the Appendix to Title 18, Crimes and Criminal Procedure.
Codification
Section was formerly classified to
Prior Provisions
A prior section 1228, act June 27, 1952, ch. 477, title II, ch. 4, §238,
Amendments
1996—
Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3), (4).
Subsec. (b).
Subsec. (b)(1).
Subsec. (b)(2)(A).
Subsec. (b)(2)(B).
Subsec. (b)(3).
Subsec. (b)(4)(B).
Subsec. (b)(4)(D).
"(D) such proceedings are conducted in, or translated for the alien into, a language the alien understands;
"(E) a determination is made for the record at such proceedings that the individual who appears to respond in such a proceeding is an alien subject to such an expedited proceeding under this section and is, in fact, the alien named in the notice for such proceeding;".
Subsec. (b)(4)(E).
Subsec. (b)(4)(F).
Subsec. (b)(4)(G).
Subsec. (b)(5).
Subsec. (c).
Subsec. (c)(1).
Subsec. (c)(2)(A).
Subsec. (c)(2)(B).
Subsec. (c)(2)(C).
Subsec. (c)(2)(D)(ii).
Subsec. (c)(2)(D)(iv).
Subsec. (c)(3).
Subsec. (c)(3)(A)(i).
Subsec. (c)(3)(A)(ii).
Subsec. (c)(3)(A)(iii).
Subsec. (c)(3)(B).
Subsec. (c)(4).
Subsec. (c)(5).
Subsec. (d).
Subsec. (d)(1).
Subsec. (d)(4).
Subsec. (d)(5).
1994—
Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (b).
Subsec. (b)(4)(D), (E).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1991—Subsec. (a).
1990—Subsec. (d)(2).
Effective Date of 1996 Amendments
Section 304(c)(2) of div. C of
Amendment by section 308(b)(5), (c)(1), (4)(A), (e)(1)(F), (2)(D), (10), (g)(1), (2)(A), (C), (5)(A)(ii), (C), (D), (10)(H) of
Section 306(d) of div. C of
Section 374(c) of div. C of
Amendment by section 671(b)(13) of
Amendment by section 671(c)(5), (6) of
Section 442(d) of
Effective Date of 1994 Amendments
Amendment by section 224(a) of
Section 130004(d) of
Effective Date of 1990 Amendment
Section 506(b) of
Effective Date
Section 7347(c) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
Expanded Special Removal Proceedings
Section 130007 of
"(a)
"(b)
"(1) construct or contract for the construction of 2 Immigration and Naturalization Service Processing Centers to detain criminal aliens; and
"(2) provide for the detention and removal of such aliens.
"(c)
"(d)
"(1) $55,000,000 for fiscal year 1995;
"(2) $54,000,000 for fiscal year 1996;
"(3) $49,000,000 for fiscal year 1997; and
"(4) $2,000,000 for fiscal year 1998."
Section Referred to in Other Sections
This section is referred to in
1 So in original. Two subsecs. (c) have been enacted.
2 See References in Text note below.
§1229. Initiation of removal proceedings
(a) Notice to appear
(1) In general
In removal proceedings under
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory provisions alleged to have been violated.
(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) of this section and (ii) a current list of counsel prepared under subsection (b)(2) of this section.
(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under
(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien's address or telephone number.
(iii) The consequences under
(G)(i) The time and place at which the proceedings will be held.
(ii) The consequences under
(2) Notice of change in time or place of proceedings
(A) In general
In removal proceedings under
(i) the new time or place of the proceedings, and
(ii) the consequences under
(B) Exception
In the case of an alien not in detention, a written notice shall not be required under this paragraph if the alien has failed to provide the address required under paragraph (1)(F).
(3) Central address files
The Attorney General shall create a system to record and preserve on a timely basis notices of addresses and telephone numbers (and changes) provided under paragraph (1)(F).
(b) Securing of counsel
(1) In general
In order that an alien be permitted the opportunity to secure counsel before the first hearing date in proceedings under
(2) Current lists of counsel
The Attorney General shall provide for lists (updated not less often than quarterly) of persons who have indicated their availability to represent pro bono aliens in proceedings under
(3) Rule of construction
Nothing in this subsection may be construed to prevent the Attorney General from proceeding against an alien pursuant to
(c) Service by mail
Service by mail under this section shall be sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with subsection (a)(1)(F) of this section.
(d) Prompt initiation of removal
(1) In the case of an alien who is convicted of an offense which makes the alien deportable, the Attorney General shall begin any removal proceeding as expeditiously as possible after the date of the conviction.
(2) Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
(June 27, 1952, ch. 477, title II, ch. 4, §239, as added
Prior Provisions
A prior section 1229, act June 27, 1952, ch. 477, title II, ch. 4, §239,
Effective Date
Section effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1229a. Removal proceedings
(a) Proceeding
(1) In general
An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.
(2) Charges
An alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility under
(3) Exclusive procedures
Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. Nothing in this section shall affect proceedings conducted pursuant to
(b) Conduct of proceeding
(1) Authority of immigration judge
The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses. The immigration judge may issue subpoenas for the attendance of witnesses and presentation of evidence. The immigration judge shall have authority (under regulations prescribed by the Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the judge's proper exercise of authority under this chapter.
(2) Form of proceeding
(A) In general
The proceeding may take place—
(i) in person,
(ii) where agreed to by the parties, in the absence of the alien,
(iii) through video conference, or
(iv) subject to subparagraph (B), through telephone conference.
(B) Consent required in certain cases
An evidentiary hearing on the merits may only be conducted through a telephone conference with the consent of the alien involved after the alien has been advised of the right to proceed in person or through video conference.
(3) Presence of alien
If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.
(4) Alien's rights in proceeding
In proceedings under this section, under regulations of the Attorney General—
(A) the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings,
(B) the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government but these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief under this chapter, and
(C) a complete record shall be kept of all testimony and evidence produced at the proceeding.
(5) Consequences of failure to appear
(A) In general
Any alien who, after written notice required under paragraph (1) or (2) of
(B) No notice if failure to provide address information
No written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under
(C) Rescission of order
Such an order may be rescinded only—
(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1) of this section), or
(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of
The filing of the motion to reopen described in clause (i) or (ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge.
(D) Effect on judicial review
Any petition for review under
(E) Additional application to certain aliens in contiguous territory
The preceding provisions of this paragraph shall apply to all aliens placed in proceedings under this section, including any alien who remains in a contiguous foreign territory pursuant to
(6) Treatment of frivolous behavior
The Attorney General shall, by regulation—
(A) define in a proceeding before an immigration judge or before an appellate administrative body under this subchapter, frivolous behavior for which attorneys may be sanctioned,
(B) specify the circumstances under which an administrative appeal of a decision or ruling will be considered frivolous and will be summarily dismissed, and
(C) impose appropriate sanctions (which may include suspension and disbarment) in the case of frivolous behavior.
Nothing in this paragraph shall be construed as limiting the authority of the Attorney General to take actions with respect to inappropriate behavior.
(7) Limitation on discretionary relief for failure to appear
Any alien against whom a final order of removal is entered in absentia under this subsection and who, at the time of the notice described in paragraph (1) or (2) of
(c) Decision and burden of proof
(1) Decision
(A) In general
At the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States. The determination of the immigration judge shall be based only on the evidence produced at the hearing.
(B) Certain medical decisions
If a medical officer or civil surgeon or board of medical officers has certified under
(2) Burden on alien
In the proceeding the alien has the burden of establishing—
(A) if the alien is an applicant for admission, that the alien is clearly and beyond doubt entitled to be admitted and is not inadmissible under
(B) by clear and convincing evidence, that the alien is lawfully present in the United States pursuant to a prior admission.
In meeting the burden of proof under subparagraph (B), the alien shall have access to the alien's visa or other entry document, if any, and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien's admission or presence in the United States.
(3) Burden on service in cases of deportable aliens
(A) In general
In the proceeding the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable. No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.
(B) Proof of convictions
In any proceeding under this chapter, any of the following documents or records (or a certified copy of such an official document or record) shall constitute proof of a criminal conviction:
(i) An official record of judgment and conviction.
(ii) An official record of plea, verdict, and sentence.
(iii) A docket entry from court records that indicates the existence of the conviction.
(iv) Official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice of the existence of the conviction.
(v) An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a State official associated with the State's repository of criminal justice records, that indicates the charge or section of law violated, the disposition of the case, the existence and date of conviction, and the sentence.
(vi) Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction.
(vii) Any document or record attesting to the conviction that is maintained by an official of a State or Federal penal institution, which is the basis for that institution's authority to assume custody of the individual named in the record.
(C) Electronic records
In any proceeding under this chapter, any record of conviction or abstract that has been submitted by electronic means to the Service from a State or court shall be admissible as evidence to prove a criminal conviction if it is—
(i) certified by a State official associated with the State's repository of criminal justice records as an official record from its repository or by a court official from the court in which the conviction was entered as an official record from its repository, and
(ii) certified in writing by a Service official as having been received electronically from the State's record repository or the court's record repository.
A certification under clause (i) may be by means of a computer-generated signature and statement of authenticity.
(4) Notice
If the immigration judge decides that the alien is removable and orders the alien to be removed, the judge shall inform the alien of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties.
(5) Motions to reconsider
(A) In general
The alien may file one motion to reconsider a decision that the alien is removable from the United States.
(B) Deadline
The motion must be filed within 30 days of the date of entry of a final administrative order of removal.
(C) Contents
The motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.
(6) Motions to reopen
(A) In general
An alien may file one motion to reopen proceedings under this section.
(B) Contents
The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.
(C) Deadline
(i) In general
Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.
(ii) Asylum
There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections 1 1158 or 1231(b)(3) of this title and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.
(iii) Failure to appear
The filing of a motion to reopen an order entered pursuant to subsection (b)(5) of this section is subject to the deadline specified in subparagraph (C) of such subsection.
(iv) Special rule for battered spouses and children
The deadline specified in subsection (b)(5)(C) of this section for filing a motion to reopen does not apply—
(I) if the basis for the motion is to apply for relief under clause (iii) or (iv) of
(II) if the motion is accompanied by a cancellation of removal application to be filed with the Attorney General or by a copy of the self-petition that has been or will be filed with the Immigration and Naturalization Service upon the granting of the motion to reopen; and
(III) if the motion to reopen is filed within 1 year of the entry of the final order of removal, except that the Attorney General may, in the Attorney General's discretion, waive this time limitation in the case of an alien who demonstrates extraordinary circumstances or extreme hardship to the alien's child.
(d) Stipulated removal
The Attorney General shall provide by regulation for the entry by an immigration judge of an order of removal stipulated to by the alien (or the alien's representative) and the Service. A stipulated order shall constitute a conclusive determination of the alien's removability from the United States.
(e) Definitions
In this section and
(1) Exceptional circumstances
The term "exceptional circumstances" refers to exceptional circumstances (such as serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.
(2) Removable
The term "removable" means—
(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under
(B) in the case of an alien admitted to the United States, that the alien is deportable under
(June 27, 1952, ch. 477, title II, ch. 4, §240, as added
Prior Provisions
A prior section 240 of act June 27, 1952, was renumbered section 240C, and is classified to
Amendments
2000—Subsec. (c)(6)(C)(iv).
Effective Date of 2000 Amendment
Effective Date
Section effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of
Subsec. (c)(3)(B), (C) of this section applicable to proving convictions entered before, on, or after Sept. 30, 1996, see section 322(c) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Elimination of Time Limitations on Motions To Reopen Deportation Proceedings for Victims of Domestic Violence
"(A)
"(i) if the basis of the motion is to apply for relief under clause (iii) or (iv) of section 204(a)(1)(A) of the Immigration and Nationality Act (
"(ii) if the motion is accompanied by a suspension of deportation application to be filed with the Attorney General or by a copy of the self-petition that will be filed with the Immigration and Naturalization Service upon the granting of the motion to reopen.
"(B)
"(i) are, or were, in deportation proceedings under the Immigration and Nationality Act [
"(ii) have become eligible to apply for relief under clause (iii) or (iv) of section 204(a)(1)(A) of the Immigration and Nationality Act (
"(I) subtitle G [§40701 et seq.] of title IV of the Violent Crime Control and Law Enforcement Act of 1994 (
"(II) this title [see Short Title of 2000 Amendment note set out under
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
Section Referred to in Other Sections
This section is referred to in
§1229b. Cancellation of removal; adjustment of status
(a) Cancellation of removal for certain permanent residents
The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
(b) Cancellation of removal and adjustment of status for certain nonpermanent residents
(1) In general
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
(2) Special rule for battered spouse or child
(A) Authority
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien demonstrates that—
(i)(I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent);
(II) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of an alien who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent); or
(III) the alien has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen's or lawful permanent resident's bigamy;
(ii) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the United States;
(iii) the alien has been a person of good moral character during such period, subject to the provisions of subparagraph (C);
(iv) the alien is not inadmissible under paragraph (2) or (3) of
(v) the removal would result in extreme hardship to the alien, the alien's child, or the alien's parent.
(B) Physical presence
Notwithstanding subsection (d)(2) of this section, for purposes of subparagraph (A)(i)(II) or for purposes of
(C) Good moral character
Notwithstanding
(D) Credible evidence considered
In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.
(3) Recordation of date
With respect to aliens who the Attorney General adjusts to the status of an alien lawfully admitted for permanent residence under paragraph (1) or (2), the Attorney General shall record the alien's lawful admission for permanent residence as of the date of the Attorney General's cancellation of removal under paragraph (1) or (2).
(4) Children of battered aliens and parents of battered alien children
(A) In general
The Attorney General shall grant parole under
(i) child of an alien granted relief under
(ii) parent of a child alien granted relief under
(B) Duration of parole
The grant of parole shall extend from the time of the grant of relief under subsection (b)(2) of this section or
(c) Aliens ineligible for relief
The provisions of subsections (a) and (b)(1) of this section shall not apply to any of the following aliens:
(1) An alien who entered the United States as a crewman subsequent to June 30, 1964.
(2) An alien who was admitted to the United States as a nonimmigrant exchange alien as defined in
(3) An alien who—
(A) was admitted to the United States as a nonimmigrant exchange alien as defined in
(B) is subject to the two-year foreign residence requirement of
(C) has not fulfilled that requirement or received a waiver thereof.
(4) An alien who is inadmissible under
(5) An alien who is described in
(6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under
(d) Special rules relating to continuous residence or physical presence
(1) Termination of continuous period
For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2) of this section, when the alien is served a notice to appear under
(2) Treatment of certain breaks in presence
An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) of this section if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
(3) Continuity not required because of honorable service in Armed Forces and presence upon entry into service
The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) of this section shall not apply to an alien who—
(A) has served for a minimum period of 24 months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and
(B) at the time of the alien's enlistment or induction was in the United States.
(e) Annual limitation
(1) Aggregate limitation
Subject to paragraphs (2) and (3), the Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under
(2) Fiscal year 1997
For fiscal year 1997, paragraph (1) shall only apply to decisions to cancel the removal of an alien, or suspend the deportation of an alien, made after April 1, 1997. Notwithstanding any other provision of law, the Attorney General may cancel the removal or suspend the deportation, in addition to the normal allotment for fiscal year 1998, of a number of aliens equal to 4,000 less the number of such cancellations of removal and suspensions of deportation granted in fiscal year 1997 after April 1, 1997.
(3) Exception for certain aliens
Paragraph (1) shall not apply to the following:
(A) Aliens described in section 309(c)(5)(C)(i) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (as amended by the Nicaraguan Adjustment and Central American Relief Act).
(B) Aliens in deportation proceedings prior to April 1, 1997, who applied for suspension of deportation under
(June 27, 1952, ch. 477, title II, ch. 4, §240A, as added
References in Text
Section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, referred to in subsecs. (b)(2)(B), (C), (4), and (e)(3)(A), is section 309 of title III of div. C of
Amendments
2000—Subsec. (b)(1)(C).
Subsec. (b)(2).
"(A) the alien has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen or lawful permanent resident (or is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or permanent resident parent);
"(B) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application;
"(C) the alien has been a person of good moral character during such period;
"(D) the alien is not inadmissible under paragraph (2) or (3) of
"(E) the removal would result in extreme hardship to the alien, the alien's child, or (in the case of an alien who is a child) to the alien's parent.
In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General."
Subsec. (b)(4).
Subsec. (d)(1).
1997—Subsec. (b)(1), (2).
Subsec. (b)(3).
Subsec. (e).
Effective Date of 2000 Amendment
Effective Date of 1997 Amendment
Section 204(e) of
Effective Date
Section effective on the first day of the first month beginning more than 180 days after Sept. 30, 1996, with certain transitional provisions including provision that subsec. (d)(1), (2) of this section be applicable to notices to appear issued before, on, or after Sept. 30, 1996, see section 309 of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Definitions
For definition of the term "removable" used in subsec. (d)(1), see
Section Referred to in Other Sections
This section is referred to in
§1229c. Voluntary departure
(a) Certain conditions
(1) In general
The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection, in lieu of being subject to proceedings under
(2) Period
(A) In general
Subject to subparagraph (B), permission to depart voluntarily under this subsection shall not be valid for a period exceeding 120 days.
(B) Three-year pilot program waiver
During the period October 1, 2000, through September 30, 2003, and subject to subparagraphs (C) and (D)(ii), the Attorney General may, in the discretion of the Attorney General for humanitarian purposes, waive application of subparagraph (A) in the case of an alien—
(i) who was admitted to the United States as a nonimmigrant visitor (described in
(I) a detailed diagnosis statement from the physician, which includes the treatment being sought and the expected time period the alien will be required to remain in the United States;
(II) a statement from the health care facility containing an assurance that the alien's treatment is not being paid through any Federal or State public health assistance, that the alien's account has no outstanding balance, and that such facility will notify the Service when the alien is released or treatment is terminated; and
(III) evidence of financial ability to support the alien's day-to-day expenses while in the United States (including the expenses of any family member described in clause (ii)) and evidence that any such alien or family member is not receiving any form of public assistance; or
(ii) who—
(I) is a spouse, parent, brother, sister, son, daughter, or other family member of a principal alien described in clause (i); and
(II) entered the United States accompanying, and with the same status as, such principal alien.
(C) Waiver limitations
(i) Waivers under subparagraph (B) may be granted only upon a request submitted by a Service district office to Service headquarters.
(ii) Not more than 300 waivers may be granted for any fiscal year for a principal alien under subparagraph (B)(i).
(iii)(I) Except as provided in subclause (II), in the case of each principal alien described in subparagraph (B)(i) not more than one adult may be granted a waiver under subparagraph (B)(ii).
(II) Not more than two adults may be granted a waiver under subparagraph (B)(ii) in a case in which—
(aa) the principal alien described in subparagraph (B)(i) is a dependent under the age of 18; or
(bb) one such adult is age 55 or older or is physically handicapped.
(D) Report to Congress; suspension of waiver authority
(i) Not later than March 30 of each year, the Commissioner shall submit to the Congress an annual report regarding all waivers granted under subparagraph (B) during the preceding fiscal year.
(ii) Notwithstanding any other provision of law, the authority of the Attorney General under subparagraph (B) shall be suspended during any period in which an annual report under clause (i) is past due and has not been submitted.
(3) Bond
The Attorney General may require an alien permitted to depart voluntarily under this subsection to post a voluntary departure bond, to be surrendered upon proof that the alien has departed the United States within the time specified.
(4) Treatment of aliens arriving in the United States
In the case of an alien who is arriving in the United States and with respect to whom proceedings under
(b) At conclusion of proceedings
(1) In general
The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under
(A) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under
(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure;
(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or
(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so.
(2) Period
Permission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days.
(3) Bond
An alien permitted to depart voluntarily under this subsection shall be required to post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified.
(c) Aliens not eligible
The Attorney General shall not permit an alien to depart voluntarily under this section if the alien was previously permitted to so depart after having been found inadmissible under
(d) Civil penalty for failure to depart
If an alien is permitted to depart voluntarily under this section and fails voluntarily to depart the United States within the time period specified, the alien shall be subject to a civil penalty of not less than $1,000 and not more than $5,000, and be ineligible for a period of 10 years for any further relief under this section and
(e) Additional conditions
The Attorney General may by regulation limit eligibility for voluntary departure under this section for any class or classes of aliens. No court may review any regulation issued under this subsection.
(f) Judicial review
No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure under subsection (b) of this section, nor shall any court order a stay of an alien's removal pending consideration of any claim with respect to voluntary departure.
(June 27, 1952, ch. 477, title II, ch. 4, §240B, as added
Amendments
2000—Subsec. (a)(2).
Effective Date
Section effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1230. Records of admission
(a) The Attorney General shall cause to be filed, as a record of admission of each immigrant, the immigrant visa required by
(b) The Attorney General shall cause to be filed such record of the admission into the United States of each immigrant admitted under
(June 27, 1952, ch. 477, title II, ch. 4, §240C, formerly §240,
Amendments
1996—Subsec. (b).
Effective Date of 1996 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1231. Detention and removal of aliens ordered removed
(a) Detention, release, and removal of aliens ordered removed
(1) Removal period
(A) In general
Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the "removal period").
(B) Beginning of period
The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
(C) Suspension of period
The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal.
(2) Detention
During the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible under
(3) Supervision after 90-day period
If the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General. The regulations shall include provisions requiring the alien—
(A) to appear before an immigration officer periodically for identification;
(B) to submit, if necessary, to a medical and psychiatric examination at the expense of the United States Government;
(C) to give information under oath about the alien's nationality, circumstances, habits, associations, and activities, and other information the Attorney General considers appropriate; and
(D) to obey reasonable written restrictions on the alien's conduct or activities that the Attorney General prescribes for the alien.
(4) Aliens imprisoned, arrested, or on parole, supervised release, or probation
(A) In general
Except as provided in section 259(a) 1 of title 42 and paragraph (2),2 the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment. Parole, supervised release, probation, or possibility of arrest or further imprisonment is not a reason to defer removal.
(B) Exception for removal of nonviolent offenders prior to completion of sentence of imprisonment
The Attorney General is authorized to remove an alien in accordance with applicable procedures under this chapter before the alien has completed a sentence of imprisonment—
(i) in the case of an alien in the custody of the Attorney General, if the Attorney General determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense related to smuggling or harboring of aliens or an offense described in
(ii) in the case of an alien in the custody of a State (or a political subdivision of a State), if the chief State official exercising authority with respect to the incarceration of the alien determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense described in section 1101(a)(43)(C) or (E) of this title), (II) the removal is appropriate and in the best interest of the State, and (III) submits a written request to the Attorney General that such alien be so removed.
(C) Notice
Any alien removed pursuant to this paragraph shall be notified of the penalties under the laws of the United States relating to the reentry of deported aliens, particularly the expanded penalties for aliens removed under subparagraph (B).
(D) No private right
No cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien.
(5) Reinstatement of removal orders against aliens illegally reentering
If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
(6) Inadmissible or criminal aliens
An alien ordered removed who is inadmissible under
(7) Employment authorization
No alien ordered removed shall be eligible to receive authorization to be employed in the United States unless the Attorney General makes a specific finding that—
(A) the alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien, or
(B) the removal of the alien is otherwise impracticable or contrary to the public interest.
(b) Countries to which aliens may be removed
(1) Aliens arriving at the United States
Subject to paragraph (3)—
(A) In general
Except as provided by subparagraphs (B) and (C), an alien who arrives at the United States and with respect to whom proceedings under
(B) Travel from contiguous territory
If the alien boarded the vessel or aircraft on which the alien arrived in the United States in a foreign territory contiguous to the United States, an island adjacent to the United States, or an island adjacent to a foreign territory contiguous to the United States, and the alien is not a native, citizen, subject, or national of, or does not reside in, the territory or island, removal shall be to the country in which the alien boarded the vessel that transported the alien to the territory or island.
(C) Alternative countries
If the government of the country designated in subparagraph (A) or (B) is unwilling to accept the alien into that country's territory, removal shall be to any of the following countries, as directed by the Attorney General:
(i) The country of which the alien is a citizen, subject, or national.
(ii) The country in which the alien was born.
(iii) The country in which the alien has a residence.
(iv) A country with a government that will accept the alien into the country's territory if removal to each country described in a previous clause of this subparagraph is impracticable, inadvisable, or impossible.
(2) Other aliens
Subject to paragraph (3)—
(A) Selection of country by alien
Except as otherwise provided in this paragraph—
(i) any alien not described in paragraph (1) who has been ordered removed may designate one country to which the alien wants to be removed, and
(ii) the Attorney General shall remove the alien to the country the alien so designates.
(B) Limitation on designation
An alien may designate under subparagraph (A)(i) a foreign territory contiguous to the United States, an adjacent island, or an island adjacent to a foreign territory contiguous to the United States as the place to which the alien is to be removed only if the alien is a native, citizen, subject, or national of, or has resided in, that designated territory or island.
(C) Disregarding designation
The Attorney General may disregard a designation under subparagraph (A)(i) if—
(i) the alien fails to designate a country promptly;
(ii) the government of the country does not inform the Attorney General finally, within 30 days after the date the Attorney General first inquires, whether the government will accept the alien into the country;
(iii) the government of the country is not willing to accept the alien into the country; or
(iv) the Attorney General decides that removing the alien to the country is prejudicial to the United States.
(D) Alternative country
If an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country—
(i) does not inform the Attorney General or the alien finally, within 30 days after the date the Attorney General first inquires or within another period of time the Attorney General decides is reasonable, whether the government will accept the alien into the country; or
(ii) is not willing to accept the alien into the country.
(E) Additional removal countries
If an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General shall remove the alien to any of the following countries:
(i) The country from which the alien was admitted to the United States.
(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.
(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States.
(iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien's birthplace when the alien was born.
(vi) The country in which the alien's birthplace is located when the alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.
(F) Removal country when United States is at war
When the United States is at war and the Attorney General decides that it is impracticable, inadvisable, inconvenient, or impossible to remove an alien under this subsection because of the war, the Attorney General may remove the alien—
(i) to the country that is host to a government in exile of the country of which the alien is a citizen or subject if the government of the host country will permit the alien's entry; or
(ii) if the recognized government of the country of which the alien is a citizen or subject is not in exile, to a country, or a political or territorial subdivision of a country, that is very near the country of which the alien is a citizen or subject, or, with the consent of the government of the country of which the alien is a citizen or subject, to another country.
(3) Restriction on removal to a country where alien's life or freedom would be threatened
(A) In general
Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.
(B) Exception
Subparagraph (A) does not apply to an alien deportable under
(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion;
(ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States;
(iii) there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or
(iv) there are reasonable grounds to believe that the alien is a danger to the security of the United States.
For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime. For purposes of clause (iv), an alien who is described in
(c) Removal of aliens arriving at port of entry
(1) Vessels and aircraft
An alien arriving at a port of entry of the United States who is ordered removed either without a hearing under
(A) it is impracticable to remove the alien on one of those vessels or aircraft within a reasonable time, or
(B) the alien is a stowaway—
(i) who has been ordered removed in accordance with
(ii) who has requested asylum, and
(iii) whose application has not been adjudicated or whose asylum application has been denied but who has not exhausted all appeal rights.
(2) Stay of removal
(A) In general
The Attorney General may stay the removal of an alien under this subsection if the Attorney General decides that—
(i) immediate removal is not practicable or proper; or
(ii) the alien is needed to testify in the prosecution of a person for a violation of a law of the United States or of any State.
(B) Payment of detention costs
During the period an alien is detained because of a stay of removal under subparagraph (A)(ii), the Attorney General may pay from the appropriation "Immigration and Naturalization Service—Salaries and Expenses"—
(i) the cost of maintenance of the alien; and
(ii) a witness fee of $1 a day.
(C) Release during stay
The Attorney General may release an alien whose removal is stayed under subparagraph (A)(ii) on—
(i) the alien's filing a bond of at least $500 with security approved by the Attorney General;
(ii) condition that the alien appear when required as a witness and for removal; and
(iii) other conditions the Attorney General may prescribe.
(3) Costs of detention and maintenance pending removal
(A) In general
Except as provided in subparagraph (B) and subsection (d) 4 of this section, an owner of a vessel or aircraft bringing an alien to the United States shall pay the costs of detaining and maintaining the alien—
(i) while the alien is detained under subsection (d)(1) of this section, and
(ii) in the case of an alien who is a stowaway, while the alien is being detained pursuant to—
(I) subsection (d)(2)(A) or (d)(2)(B)(i) of this section,
(II) subsection (d)(2)(B)(ii) or (iii) of this section for the period of time reasonably necessary for the owner to arrange for repatriation or removal of the stowaway, including obtaining necessary travel documents, but not to extend beyond the date on which it is ascertained that such travel documents cannot be obtained from the country to which the stowaway is to be returned, or
(III)
(B) Nonapplication
Subparagraph (A) shall not apply if—
(i) the alien is a crewmember;
(ii) the alien has an immigrant visa;
(iii) the alien has a nonimmigrant visa or other documentation authorizing the alien to apply for temporary admission to the United States and applies for admission not later than 120 days after the date the visa or documentation was issued;
(iv) the alien has a reentry permit and applies for admission not later than 120 days after the date of the alien's last inspection and admission;
(v)(I) the alien has a nonimmigrant visa or other documentation 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 inspection and admission under the reentry permit; and
(III) the owner of the vessel or aircraft satisfies the Attorney General that the existence of the condition relating to inadmissibility could not have been discovered by exercising reasonable care before the alien boarded the vessel or aircraft; or
(vi) the individual claims to be a national of the United States and has a United States passport.
(d) Requirements of persons providing transportation
(1) Removal at time of arrival
An owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel or aircraft bringing an alien (except an alien crewmember) to the United States shall—
(A) receive an alien back on the vessel or aircraft or another vessel or aircraft owned or operated by the same interests if the alien is ordered removed under this part; and
(B) take the alien to the foreign country to which the alien is ordered removed.
(2) Alien stowaways
An owner, agent, master, commanding officer, charterer, or consignee of a vessel or aircraft arriving in the United States with an alien stowaway—
(A) shall detain the alien on board the vessel or aircraft, or at such place as the Attorney General shall designate, until completion of the inspection of the alien by an immigration officer;
(B) may not permit the stowaway to land in the United States, except pursuant to regulations of the Attorney General temporarily—
(i) for medical treatment,
(ii) for detention of the stowaway by the Attorney General, or
(iii) for departure or removal of the stowaway; and
(C) if ordered by an immigration officer, shall remove the stowaway on the vessel or aircraft or on another vessel or aircraft.
The Attorney General shall grant a timely request to remove the stowaway under subparagraph (C) on a vessel or aircraft other than that on which the stowaway arrived if the requester has obtained any travel documents necessary for departure or repatriation of the stowaway and removal of the stowaway will not be unreasonably delayed.
(3) Removal upon order
An owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel, aircraft, or other transportation line shall comply with an order of the Attorney General to take on board, guard safely, and transport to the destination specified any alien ordered to be removed under this chapter.
(e) Payment of expenses of removal
(1) Costs of removal at time of arrival
In the case of an alien who is a stowaway or who is ordered removed either without a hearing under section 1225(a)(1) 5 or 1225(c) of this title or pursuant to proceedings under
(A) pay the cost from the appropriation "Immigration and Naturalization Service—Salaries and Expenses"; and
(B) recover the amount of the cost in a civil action from the owner, agent, or consignee of the vessel or aircraft (if any) on which the alien arrived in the United States.
(2) Costs of removal to port of removal for aliens admitted or permitted to land
In the case of an alien who has been admitted or permitted to land and is ordered removed, the cost (if any) of removal of the alien to the port of removal shall be at the expense of the appropriation for the enforcement of this chapter.
(3) Costs of removal from port of removal for aliens admitted or permitted to land
(A) Through appropriation
Except as provided in subparagraph (B), in the case of an alien who has been admitted or permitted to land and is ordered removed, the cost (if any) of removal of the alien from the port of removal shall be at the expense of the appropriation for the enforcement of this chapter.
(B) Through owner
(i) In general
In the case of an alien described in clause (ii), the cost of removal of the alien from the port of removal may be charged to any owner of the vessel, aircraft, or other transportation line by which the alien came to the United States.
(ii) Aliens described
An alien described in this clause is an alien who—
(I) is admitted to the United States (other than lawfully admitted for permanent residence) and is ordered removed within 5 years of the date of admission based on a ground that existed before or at the time of admission, or
(II) is an alien crewman permitted to land temporarily under
(C) Costs of removal of certain aliens granted voluntary departure
In the case of an alien who has been granted voluntary departure under
(f) Aliens requiring personal care during removal
(1) In general
If the Attorney General believes that an alien being removed requires personal care because of the alien's mental or physical condition, the Attorney General may employ a suitable person for that purpose who shall accompany and care for the alien until the alien arrives at the final destination.
(2) Costs
The costs of providing the service described in paragraph (1) shall be defrayed in the same manner as the expense of removing the accompanied alien is defrayed under this section.
(g) Places of detention
(1) In general
The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal. When United States Government facilities are unavailable or facilities adapted or suitably located for detention are unavailable for rental, the Attorney General may expend from the appropriation "Immigration and Naturalization Service—Salaries and Expenses", without regard to
(2) Detention facilities of the Immigration and Naturalization Service
Prior to initiating any project for the construction of any new detention facility for the Service, the Commissioner shall consider the availability for purchase or lease of any existing prison, jail, detention center, or other comparable facility suitable for such use.
(h) Statutory construction
Nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
(i) Incarceration
(1) If the chief executive officer of a State (or, if appropriate, a political subdivision of the State) exercising authority with respect to the incarceration of an undocumented criminal alien submits a written request to the Attorney General, the Attorney General shall, as determined by the Attorney General—
(A) enter into a contractual arrangement which provides for compensation to the State or a political subdivision of the State, as may be appropriate, with respect to the incarceration of the undocumented criminal alien; or
(B) take the undocumented criminal alien into the custody of the Federal Government and incarcerate the alien.
(2) Compensation under paragraph (1)(A) shall be the average cost of incarceration of a prisoner in the relevant State as determined by the Attorney General.
(3) For purposes of this subsection, the term "undocumented criminal alien" means an alien who—
(A) has been convicted of a felony or two or more misdemeanors; and
(B)(i) entered the United States without inspection or at any time or place other than as designated by the Attorney General;
(ii) was the subject of exclusion or deportation proceedings at the time he or she was taken into custody by the State or a political subdivision of the State; or
(iii) was admitted as a nonimmigrant and at the time he or she was taken into custody by the State or a political subdivision of the State has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under
(4)(A) In carrying out paragraph (1), the Attorney General shall give priority to the Federal incarceration of undocumented criminal aliens who have committed aggravated felonies.
(B) The Attorney General shall ensure that undocumented criminal aliens incarcerated in Federal facilities pursuant to this subsection are held in facilities which provide a level of security appropriate to the crimes for which they were convicted.
(5) There are authorized to be appropriated such sums as may be necessary to carry out this subsection in fiscal years 2003 and 2004.
(6) To the extent of available appropriations, funds otherwise made available under this section with respect to a State (or political subdivision, including a municipality) for incarceration of an undocumented criminal alien may, at the discretion of the recipient of the funds, be used for the costs of imprisonment of such alien in a State, local, or municipal prison or jail.
(June 27, 1952, ch. 477, title II, ch. 4, §241, as added and amended
References in Text
Codification
The text of subsec. (j) of
Prior Provisions
A prior section 241 of act June 27, 1952, was renumbered section 237, and is classified to
Amendments
2002—Subsec. (i)(5).
1996—Subsec. (i).
Subsec. (i)(3)(A).
Subsec. (i)(6).
Effective Date of 1996 Amendment
Amendment by section 306(a)(1) of
Section 328(a)(2) of div. C of
Effective Date
Section effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
United States Policy With Respect to Involuntary Return of Persons in Danger of Subjection to Torture
"(a)
"(b)
"(c)
"(d)
"(e)
"(f)
"(1)
"(2)
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
Pilot Program on Use of Closed Military Bases for Detention of Inadmissible or Deportable Aliens
Section 387 of div. C of
"(a)
"(b)
"(c)
"(1) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of
"(2) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (
"(3)
"(4) Any other similar law enacted after the date of the enactment of this Act [Sept. 30, 1996]."
Interior Repatriation Program
Section 388 of div. C of
Termination of Limitation
Section 20301(c) of
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
2 So in original. Probably should be "subparagraph (B),".
3 So in original. Probably should be followed by a closing parenthesis.
4 So in original. Probably should be subsection "(e)".
5 So in original. Probably should be "1225(b)(1)".
Part V—Adjustment and Change of Status
§1251. Transferred
Codification
Section 1251, act June 27, 1952, ch. 477, title II, ch. 5, §241,
§1251a. Repealed. Pub. L. 87–301, §24(a)(3), Sept. 26, 1961, 75 Stat. 657
Section,
§1252. Judicial review of orders of removal
(a) Applicable provisions
(1) General orders of removal
Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to
(2) Matters not subject to judicial review
(A) Review relating to section 1225(b)(1)
Notwithstanding any other provision of law, no court shall have jurisdiction to review—
(i) except as provided in subsection (e) of this section, any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to
(ii) except as provided in subsection (e) of this section, a decision by the Attorney General to invoke the provisions of such section,
(iii) the application of such section to individual aliens, including the determination made under
(iv) except as provided in subsection (e) of this section, procedures and policies adopted by the Attorney General to implement the provisions of
(B) Denials of discretionary relief
Notwithstanding any other provision of law, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under
(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under
(C) Orders against criminal aliens
Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in
(3) Treatment of certain decisions
No alien shall have a right to appeal from a decision of an immigration judge which is based solely on a certification described in
(b) Requirements for review of orders of removal
With respect to review of an order of removal under subsection (a)(1) of this section, the following requirements apply:
(1) Deadline
The petition for review must be filed not later than 30 days after the date of the final order of removal.
(2) Venue and forms
The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs.
(3) Service
(A) In general
The respondent is the Attorney General. The petition shall be served on the Attorney General and on the officer or employee of the Service in charge of the Service district in which the final order of removal under
(B) Stay of order
Service of the petition on the officer or employee does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise.
(C) Alien's brief
The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the Attorney General, and the court may not extend these deadlines except upon motion for good cause shown. If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result.
(4) Scope and standard for review
Except as provided in paragraph (5)(B)—
(A) the court of appeals shall decide the petition only on the administrative record on which the order of removal is based,
(B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,
(C) a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and
(D) the Attorney General's discretionary judgment whether to grant relief under
(5) Treatment of nationality claims
(A) Court determination if no issue of fact
If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.
(B) Transfer if issue of fact
If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under
(C) Limitation on determination
The petitioner may have such nationality claim decided only as provided in this paragraph.
(6) Consolidation with review of motions to reopen or reconsider
When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.
(7) Challenge to validity of orders in certain criminal proceedings
(A) In general
If the validity of an order of removal has not been judicially decided, a defendant in a criminal proceeding charged with violating
(B) Claims of United States nationality
If the defendant claims in the motion to be a national of the United States and the district court finds that—
(i) no genuine issue of material fact about the defendant's nationality is presented, the court shall decide the motion only on the administrative record on which the removal order is based and the administrative findings of fact are conclusive if supported by reasonable, substantial, and probative evidence on the record considered as a whole; or
(ii) a genuine issue of material fact about the defendant's nationality is presented, the court shall hold a new hearing on the nationality claim and decide that claim as if an action had been brought under
The defendant may have such nationality claim decided only as provided in this subparagraph.
(C) Consequence of invalidation
If the district court rules that the removal order is invalid, the court shall dismiss the indictment for violation of
(D) Limitation on filing petitions for review
The defendant in a criminal proceeding under
(8) Construction
This subsection—
(A) does not prevent the Attorney General, after a final order of removal has been issued, from detaining the alien under
(B) does not relieve the alien from complying with
(C) does not require the Attorney General to defer removal of the alien.
(9) Consolidation of questions for judicial review
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.
(c) Requirements for petition
A petition for review or for habeas corpus of an order of removal—
(1) shall attach a copy of such order, and
(2) shall state whether a court has upheld the validity of the order, and, if so, shall state the name of the court, the date of the court's ruling, and the kind of proceeding.
(d) Review of final orders
A court may review a final order of removal only if—
(1) the alien has exhausted all administrative remedies available to the alien as of right, and
(2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.
(e) Judicial review of orders under section 1225(b)(1)
(1) Limitations on relief
Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may—
(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with
(B) certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection.
(2) Habeas corpus proceedings
Judicial review of any determination made under
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under such section, and
(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under
(3) Challenges on validity of the system
(A) In general
Judicial review of determinations under
(i) whether such section, or any regulation issued to implement such section, is constitutional; or
(ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law.
(B) Deadlines for bringing actions
Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented.
(C) Notice of appeal
A notice of appeal of an order issued by the District Court under this paragraph may be filed not later than 30 days after the date of issuance of such order.
(D) Expeditious consideration of cases
It shall be the duty of the District Court, the Court of Appeals, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any case considered under this paragraph.
(4) Decision
In any case where the court determines that the petitioner—
(A) is an alien who was not ordered removed under
(B) has demonstrated by a preponderance of the evidence that the alien is an alien lawfully admitted for permanent residence, has been admitted as a refugee under
(5) Scope of inquiry
In determining whether an alien has been ordered removed under
(f) Limit on injunctive relief
(1) In general
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
(2) Particular cases
Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.
(g) Exclusive jurisdiction
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
(June 27, 1952, ch. 477, title II, ch. 5, §242,
References in Text
Rule 23 of the Federal Rules of Civil Procedure, referred to in subsec. (e)(1)(B), is set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, referred to in subsec. (f)(1), is div. C of
Amendments
1996—
Subsec. (a)(2).
Subsec. (b).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (h).
Subsec. (i).
Subsec. (j).
1994—Subsec. (b).
Subsec. (e).
Subsec. (h).
Subsec. (j).
1991—Subsec. (a)(2)(B).
Subsec. (b).
Subsec. (e).
Subsec. (h).
1990—Subsec. (a)(2).
Subsec. (b).
"(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;
"(2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;
"(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; and
"(4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence."
Subsec. (e).
1988—Subsec. (a).
Subsec. (e).
1986—Subsec. (i).
1984—Subsec. (h).
1981—Subsec. (b).
Subsec. (e).
1954—Subsec. (d). Act Sept. 3, 1954, struck out "shall upon conviction be guilty of a felony."
Effective Date of 1996 Amendments
Section 306(c) of div. C of
"(1)
"(2)
[Section 2 of
Section 306(d) of div. C of
Amendment by section 308(g)(10)(H) of
Amendment by section 371(b)(6) of
For delayed effective date of amendment by section 440(c) of
Section 436(b)(3) of
Effective Date of 1994 Amendments
Amendment by section 219(h) of
Section 224(c) of
Section 20301(b) of
Effective Date of 1991 Amendment
Amendment by section 306(a)(4), (c)(7) of
Section 307(m)(2) of
Effective Date of 1990 Amendment
Section 504(c) of
Section 545(g) of
"(1)
"(A) Subsections (a), (b), (c), and (e)(1) of section 242B of the Immigration and Nationality Act [former
"(B) The Attorney General shall certify to the Congress when the central address file system (described in section 239(a)(4) [probably means 239(a)(3)] of the Immigration and Nationality Act) [
"(C) The Comptroller General shall submit to Congress, within 3 months after the date of the Attorney General's certification under subparagraph (B), a report on the adequacy of such system.
"(2)
"(3)
"(4)
Amendment by section 603(b)(2) of
Effective Date of 1988 Amendment
Section 7343(c) of
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Regulations
Section 545(d) of
"(1) the period of time in which motions to reopen and to reconsider may be offered in deportation proceedings, which regulations include a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions; and
"(2) the time period for the filing of administrative appeals in deportation proceedings and for the filing of appellate and reply briefs, which regulations include a limitation on the number of administrative appeals that may be made, a maximum time period for the filing of such motions and briefs, the items to be included in the notice of appeal, and the consolidation of motions to reopen or to reconsider with the appeal of the order of deportation."
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
Authority To Accept Certain Assistance
Section 130008 of
"(a)
"(b)
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§1252a. Transferred
Codification
Section 1252a, act June 27, 1952, ch. 477, title II, ch. 5, §242A, as added Nov. 18, 1988,
§1252b. Repealed. Pub. L. 104–208, div. C, title III, §308(b)(6), Sept. 30, 1996, 110 Stat. 3009–615
Section, act June 27, 1952, ch. 477, title II, ch. 5, §242B, as added Nov. 29, 1990,
Effective Date of Repeal
Repeal effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of
§1252c. Authorizing State and local law enforcement officials to arrest and detain certain illegal aliens
(a) In general
Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—
(1) is an alien illegally present in the United States; and
(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,
but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.
(b) Cooperation
The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.
(
Codification
This section was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1253. Penalties related to removal
(a) Penalty for failure to depart
(1) In general
Any alien against whom a final order of removal is outstanding by reason of being a member of any of the classes described in
(A) willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal under administrative processes, or if judicial review is had, then from the date of the final order of the court,
(B) willfully fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure,
(C) connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of preventing or hampering the alien's departure pursuant to such, or
(D) willfully fails or refuses to present himself or herself for removal at the time and place required by the Attorney General pursuant to such order,
shall be fined under title 18, or imprisoned not more than four years (or 10 years if the alien is a member of any of the classes described in paragraph (1)(E), (2), (3), or (4) of
(2) Exception
It is not a violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien's release from incarceration or custody.
(3) Suspension
The court may for good cause suspend the sentence of an alien under this subsection and order the alien's release under such conditions as the court may prescribe. In determining whether good cause has been shown to justify releasing the alien, the court shall take into account such factors as—
(A) the age, health, and period of detention of the alien;
(B) the effect of the alien's release upon the national security and public peace or safety;
(C) the likelihood of the alien's resuming or following a course of conduct which made or would make the alien deportable;
(D) the character of the efforts made by such alien himself and by representatives of the country or countries to which the alien's removal is directed to expedite the alien's departure from the United States;
(E) the reason for the inability of the Government of the United States to secure passports, other travel documents, or removal facilities from the country or countries to which the alien has been ordered removed; and
(F) the eligibility of the alien for discretionary relief under the immigration laws.
(b) Willful failure to comply with terms of release under supervision
An alien who shall willfully fail to comply with regulations or requirements issued pursuant to
(c) Penalties relating to vessels and aircraft
(1) Civil penalties
(A) Failure to carry out certain orders
If the Attorney General is satisfied that a person has violated subsection (d) or (e) of
(B) Failure to remove alien stowaways
If the Attorney General is satisfied that a person has failed to remove an alien stowaway as required under
(C) No compromise
The Attorney General may not compromise the amount of such penalty under this paragraph.
(2) 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 paragraph (1) only if a bond approved by the Attorney General or an amount sufficient to pay the civil penalty is deposited with the Commissioner.
(B) Prohibition on clearance while penalty unpaid
A vessel or aircraft may not be granted clearance if a civil penalty imposed under paragraph (1) is not paid.
(d) Discontinuing granting visas to nationals of country denying or delaying accepting alien
On being notified by the Attorney General that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the Attorney General asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or 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.
(June 27, 1952, ch. 477, title II, ch. 5, §243,
Amendments
1996—
Subsec. (h)(2).
Subsec. (h)(3).
"(A) such alien's life or freedom would be threatened, in the country to which such alien would be deported or returned, on account of race, religion, nationality, membership in a particular social group, or political opinion; and
"(B) the application of paragraph (1) to such alien is necessary to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees."
1990—Subsec. (h)(1).
Subsec. (h)(2).
1981—Subsec. (a).
1980—Subsec. (h).
1978—Subsec. (h).
1965—Subsec. (h).
Effective Date of 1996 Amendments
Amendment by
Section 413(g) of
Effective Date of 1990 Amendment
Amendment by section 515(a)(2) of
Amendment by section 603(b)(3) of
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
Sense of Congress Respecting Treatment of Cuban Political Prisoners
Section Referred to in Other Sections
This section is referred to in
§1254. Repealed. Pub. L. 104–208, div. C, title III, §308(b)(7), Sept. 30, 1996, 110 Stat. 3009–615
Section, acts June 27, 1952, ch. 477, title II, ch. 5, §244,
Effective Date of Repeal
Repeal effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of
§1254a. Temporary protected status
(a) Granting of status
(1) In general
In the case of an alien who is a national of a foreign state designated under subsection (b) of this section (or in the case of an alien having no nationality, is a person who last habitually resided in such designated state) and who meets the requirements of subsection (c) of this section, the Attorney General, in accordance with this section—
(A) may grant the alien temporary protected status in the United States and shall not remove the alien from the United States during the period in which such status is in effect, and
(B) shall authorize the alien to engage in employment in the United States and provide the alien with an "employment authorized" endorsement or other appropriate work permit.
(2) Duration of work authorization
Work authorization provided under this section shall be effective throughout the period the alien is in temporary protected status under this section.
(3) Notice
(A) Upon the granting of temporary protected status under this section, the Attorney General shall provide the alien with information concerning such status under this section.
(B) If, at the time of initiation of a removal proceeding against an alien, the foreign state (of which the alien is a national) is designated under subsection (b) of this section, the Attorney General shall promptly notify the alien of the temporary protected status that may be available under this section.
(C) If, at the time of designation of a foreign state under subsection (b) of this section, an alien (who is a national of such state) is in a removal proceeding under this subchapter, the Attorney General shall promptly notify the alien of the temporary protected status that may be available under this section.
(D) Notices under this paragraph shall be provided in a form and language that the alien can understand.
(4) Temporary treatment for eligible aliens
(A) In the case of an alien who can establish a prima facie case of eligibility for benefits under paragraph (1), but for the fact that the period of registration under subsection (c)(1)(A)(iv) of this section has not begun, until the alien has had a reasonable opportunity to register during the first 30 days of such period, the Attorney General shall provide for the benefits of paragraph (1).
(B) In the case of an alien who establishes a prima facie case of eligibility for benefits under paragraph (1), until a final determination with respect to the alien's eligibility for such benefits under paragraph (1) has been made, the alien shall be provided such benefits.
(5) Clarification
Nothing in this section shall be construed as authorizing the Attorney General to deny temporary protected status to an alien based on the alien's immigration status or to require any alien, as a condition of being granted such status, either to relinquish nonimmigrant or other status the alien may have or to execute any waiver of other rights under this chapter. The granting of temporary protected status under this section shall not be considered to be inconsistent with the granting of nonimmigrant status under this chapter.
(b) Designations
(1) In general
The Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if—
(A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;
(B) the Attorney General finds that—
(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,
(ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and
(iii) the foreign state officially has requested designation under this subparagraph; or
(C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.
A designation of a foreign state (or part of such foreign state) under this paragraph shall not become effective unless notice of the designation (including a statement of the findings under this paragraph and the effective date of the designation) is published in the Federal Register. In such notice, the Attorney General shall also state an estimate of the number of nationals of the foreign state designated who are (or within the effective period of the designation are likely to become) eligible for temporary protected status under this section and their immigration status in the United States.
(2) Effective period of designation for foreign states
The designation of a foreign state (or part of such foreign state) under paragraph (1) shall—
(A) take effect upon the date of publication of the designation under such paragraph, or such later date as the Attorney General may specify in the notice published under such paragraph, and
(B) shall remain in effect until the effective date of the termination of the designation under paragraph (3)(B).
For purposes of this section, the initial period of designation of a foreign state (or part thereof) under paragraph (1) is the period, specified by the Attorney General, of not less than 6 months and not more than 18 months.
(3) Periodic review, terminations, and extensions of designations
(A) Periodic review
At least 60 days before end of the initial period of designation, and any extended period of designation, of a foreign state (or part thereof) under this section the Attorney General, after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state (or part of such foreign state) for which a designation is in effect under this subsection and shall determine whether the conditions for such designation under this subsection continue to be met. The Attorney General shall provide on a timely basis for the publication of notice of each such determination (including the basis for the determination, and, in the case of an affirmative determination, the period of extension of designation under subparagraph (C)) in the Federal Register.
(B) Termination of designation
If the Attorney General determines under subparagraph (A) that a foreign state (or part of such foreign state) no longer continues to meet the conditions for designation under paragraph (1), the Attorney General shall terminate the designation by publishing notice in the Federal Register of the determination under this subparagraph (including the basis for the determination). Such termination is effective in accordance with subsection (d)(3) of this section, but shall not be effective earlier than 60 days after the date the notice is published or, if later, the expiration of the most recent previous extension under subparagraph (C).
(C) Extension of designation
If the Attorney General does not determine under subparagraph (A) that a foreign state (or part of such foreign state) no longer meets the conditions for designation under paragraph (1), the period of designation of the foreign state is extended for an additional period of 6 months (or, in the discretion of the Attorney General, a period of 12 or 18 months).
(4) Information concerning protected status at time of designations
At the time of a designation of a foreign state under this subsection, the Attorney General shall make available information respecting the temporary protected status made available to aliens who are nationals of such designated foreign state.
(5) Review
(A) Designations
There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.
(B) Application to individuals
The Attorney General shall establish an administrative procedure for the review of the denial of benefits to aliens under this subsection. Such procedure shall not prevent an alien from asserting protection under this section in removal proceedings if the alien demonstrates that the alien is a national of a state designated under paragraph (1).
(c) Aliens eligible for temporary protected status
(1) In general
(A) Nationals of designated foreign states
Subject to paragraph (3), an alien, who is a national of a state designated under subsection (b)(1) of this section (or in the case of an alien having no nationality, is a person who last habitually resided in such designated state), meets the requirements of this paragraph only if—
(i) the alien has been continuously physically present in the United States since the effective date of the most recent designation of that state;
(ii) the alien has continuously resided in the United States since such date as the Attorney General may designate;
(iii) the alien is admissible as an immigrant, except as otherwise provided under paragraph (2)(A), and is not ineligible for temporary protected status under paragraph (2)(B); and
(iv) to the extent and in a manner which the Attorney General establishes, the alien registers for the temporary protected status under this section during a registration period of not less than 180 days.
(B) Registration fee
The Attorney General may require payment of a reasonable fee as a condition of registering an alien under subparagraph (A)(iv) (including providing an alien with an "employment authorized" endorsement or other appropriate work permit under this section). The amount of any such fee shall not exceed $50. In the case of aliens registered pursuant to a designation under this section made after July 17, 1991, the Attorney General may impose a separate, additional fee for providing an alien with documentation of work authorization. Notwithstanding
(2) Eligibility standards
(A) Waiver of certain grounds for inadmissibility
In the determination of an alien's admissibility for purposes of subparagraph (A)(iii) of paragraph (1)—
(i) the provisions of paragraphs (5) and (7)(A) of
(ii) except as provided in clause (iii), the Attorney General may waive any other provision of
(iii) the Attorney General may not waive—
(I) paragraphs (2)(A) and (2)(B) (relating to criminals) of such section,
(II) paragraph (2)(C) of such section (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marijuana, or
(III) paragraphs (3)(A), (3)(B), (3)(C), and (3)(E) of such section (relating to national security and participation in the Nazi persecutions or those who have engaged in genocide).
(B) Aliens ineligible
An alien shall not be eligible for temporary protected status under this section if the Attorney General finds that—
(i) the alien has been convicted of any felony or 2 or more misdemeanors committed in the United States, or
(ii) the alien is described in
(3) Withdrawal of temporary protected status
The Attorney General shall withdraw temporary protected status granted to an alien under this section if—
(A) the Attorney General finds that the alien was not in fact eligible for such status under this section,
(B) except as provided in paragraph (4) and permitted in subsection (f)(3) of this section, the alien has not remained continuously physically present in the United States from the date the alien first was granted temporary protected status under this section, or
(C) the alien fails, without good cause, to register with the Attorney General annually, at the end of each 12-month period after the granting of such status, in a form and manner specified by the Attorney General.
(4) Treatment of brief, casual, and innocent departures and certain other absences
(A) For purposes of paragraphs (1)(A)(i) and (3)(B), an alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences from the United States, without regard to whether such absences were authorized by the Attorney General.
(B) For purposes of paragraph (1)(A)(ii), an alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual, and innocent absence described in subparagraph (A) or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.
(5) Construction
Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for temporary protected status under this section.
(6) Confidentiality of information
The Attorney General shall establish procedures to protect the confidentiality of information provided by aliens under this section.
(d) Documentation
(1) Initial issuance
Upon the granting of temporary protected status to an alien under this section, the Attorney General shall provide for the issuance of such temporary documentation and authorization as may be necessary to carry out the purposes of this section.
(2) Period of validity
Subject to paragraph (3), such documentation shall be valid during the initial period of designation of the foreign state (or part thereof) involved and any extension of such period. The Attorney General may stagger the periods of validity of the documentation and authorization in order to provide for an orderly renewal of such documentation and authorization and for an orderly transition (under paragraph (3)) upon the termination of a designation of a foreign state (or any part of such foreign state).
(3) Effective date of terminations
If the Attorney General terminates the designation of a foreign state (or part of such foreign state) under subsection (b)(3)(B) of this section, such termination shall only apply to documentation and authorization issued or renewed after the effective date of the publication of notice of the determination under that subsection (or, at the Attorney General's option, after such period after the effective date of the determination as the Attorney General determines to be appropriate in order to provide for an orderly transition).
(4) Detention of alien
An alien provided temporary protected status under this section shall not be detained by the Attorney General on the basis of the alien's immigration status in the United States.
(e) Relation of period of temporary protected status to cancellation of removal
With respect to an alien granted temporary protected status under this section, the period of such status shall not be counted as a period of physical presence in the United States for purposes of
(f) Benefits and status during period of temporary protected status
During a period in which an alien is granted temporary protected status under this section—
(1) the alien shall not be considered to be permanently residing in the United States under color of law;
(2) the alien may be deemed ineligible for public assistance by a State (as defined in
(3) the alien may travel abroad with the prior consent of the Attorney General; and
(4) for purposes of adjustment of status under
(g) Exclusive remedy
Except as otherwise specifically provided, this section shall constitute the exclusive authority of the Attorney General under law to permit aliens who are or may become otherwise deportable or have been paroled into the United States to remain in the United States temporarily because of their particular nationality or region of foreign state of nationality.
(h) Limitation on consideration in Senate of legislation adjusting status
(1) In general
Except as provided in paragraph (2), it shall not be in order in the Senate to consider any bill, resolution, or amendment that—
(A) provides for adjustment to lawful temporary or permanent resident alien status for any alien receiving temporary protected status under this section, or
(B) has the effect of amending this subsection or limiting the application of this subsection.
(2) Supermajority required
Paragraph (1) may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members duly chosen and sworn. An affirmative vote of three-fifths of the Members of the Senate duly chosen and sworn shall be required in the Senate to sustain an appeal of the ruling of the Chair on a point of order raised under paragraph (1).
(3) Rules
Paragraphs (1) and (2) are enacted—
(A) as an exercise of the rulemaking power of the Senate and as such they are deemed a part of the rules of the Senate, but applicable only with respect to the matters described in paragraph (1) and supersede other rules of the Senate only to the extent that such paragraphs are inconsistent therewith; and
(B) with full recognition of the constitutional right of the Senate to change such rules at any time, in the same manner as in the case of any other rule of the Senate.
(i) Annual report and review
(1) Annual report
Not later than March 1 of each year (beginning with 1992), the Attorney General, after consultation with the appropriate agencies of the Government, shall submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate on the operation of this section during the previous year. Each report shall include—
(A) a listing of the foreign states or parts thereof designated under this section,
(B) the number of nationals of each such state who have been granted temporary protected status under this section and their immigration status before being granted such status, and
(C) an explanation of the reasons why foreign states or parts thereof were designated under subsection (b)(1) of this section and, with respect to foreign states or parts thereof previously designated, why the designation was terminated or extended under subsection (b)(3) of this section.
(2) Committee report
No later than 180 days after the date of receipt of such a report, the Committee on the Judiciary of each House of Congress shall report to its respective House such oversight findings and legislation as it deems appropriate.
(June 27, 1952, ch. 477, title II, ch. 5, §244, formerly §244A, as added and amended
Amendments
1996—Subsec. (a)(1)(A).
Subsec. (a)(3)(B), (C).
Subsec. (b)(5)(B).
Subsec. (c)(2)(B)(ii).
Subsec. (e).
1994—Subsec. (c)(1)(B).
Subsec. (c)(2)(A)(iii)(III).
1991—Subsec. (a)(1).
Subsec. (c)(1)(A).
Subsec. (c)(1)(B).
Subsec. (c)(2)(A)(iii)(I).
Subsec. (c)(2)(A)(iii)(III).
1990—Subsec. (c)(2)(A)(i).
Subsec. (c)(2)(A)(iii)(I).
Subsec. (c)(2)(A)(iii)(II).
Subsec. (c)(2)(A)(iii)(III).
Subsec. (c)(2)(A)(iii)(IV).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1994 Amendment
Amendment by section 219(j) of
Section 219(z) of
Effective Date of 1991 Amendment
Amendment by section 304(b) of
Section 307(l) of
Effective Date of 1990 Amendment
Amendment by section 603(a)(24) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Limitation on Suspension of Deportation
The Attorney General may not suspend deportation and adjust status under this section of more than 4,000 aliens in any fiscal year, beginning after Sept. 30, 1996, regardless of when aliens applied for such suspension and adjustment, see section 309(c)(7) of
Aliens Authorized To Travel Abroad Temporarily
Section 304(c) of
"(1) In the case of an alien described in paragraph (2) whom the Attorney General authorizes to travel abroad temporarily and who returns to the United States in accordance with such authorization—
"(A) the alien shall be inspected and admitted in the same immigration status the alien had at the time of departure if—
"(i) in the case of an alien described in paragraph (2)(A), the alien is found not to be excludable on a ground of exclusion referred to in section 301(a)(1) of the Immigration Act of 1990 [
"(ii) in the case of an alien described in paragraph (2)(B), the alien is found not to be excludable on a ground of exclusion referred to in section 244(c)(2)(A)(iii) of the Immigration and Nationality Act [
"(B) the alien shall not be considered, by reason of such authorized departure, to have failed to maintain continuous physical presence in the United States for purposes of section 240A(a) of the Immigration and Nationality Act [
"(2) Aliens described in this paragraph are the following:
"(A) Aliens provided benefits under section 301 of the Immigration Act of 1990 (relating to family unity).
"(B) Aliens provided temporary protected status under section 244 of the Immigration and Nationality Act, including aliens provided such status under section 303 of the Immigration Act of 1990 [
Effect on Executive Order 12711
Section 302(c) of
Special Temporary Protected Status for Salvadorans
Section 303 of
"(a)
"(1)
"(2)
"(b)
"(1)
"(A) the alien has been continuously physically present in the United States since September 19, 1990;
"(B) the alien is admissible as an immigrant, except as otherwise provided under section 244(c)(2)(A) of such Act, and is not ineligible for temporary protected status under section 244(c)(2)(B) of such Act; and
"(C) in a manner which the Attorney General shall establish, the alien registers for temporary protected status under this section during the registration period beginning January 1, 1991, and ending October 31, 1991.
"(2)
"(c)
"(1)
"(2)
"(3) 6-
"(4)
"(d)
"(1)
"(2)
Section Referred to in Other Sections
This section is referred to in
§1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence
(a) Status as person admitted for permanent residence on application and eligibility for immigrant visa
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of
(b) Record of lawful admission for permanent residence; reduction of preference visas
Upon the approval of an application for adjustment made under subsection (a) of this section, the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under
(c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa
Other than an alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (A)(v), (A)(vi), (B)(ii), (B)(iii), or (B)(iv) of
(d) Alien admitted for permanent residence on conditional basis; fiancee or fiance of citizen
The Attorney General may not adjust, under subsection (a) of this section, the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under
(e) Restriction on adjustment of status based on marriages entered while in admissibility or deportation proceedings; bona fide marriage exception
(1) Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien's status adjusted under subsection (a) of this section.
(2) The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien's right to be admitted or remain in the United States.
(3) Paragraph (1) and
(f) Limitation on adjustment of status
The Attorney General may not adjust, under subsection (a) of this section, the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under
(g) Special immigrants
In applying this section to a special immigrant described in
(h) Application with respect to special immigrants
In applying this section to a special immigrant described in
(1) such an immigrant shall be deemed, for purposes of subsection (a) of this section, to have been paroled into the United States; and
(2) in determining the alien's admissibility as an immigrant—
(A) paragraphs (4), (5)(A), and (7)(A) of
(B) the Attorney General may waive other paragraphs of
The relationship between an alien and the alien's natural parents or prior adoptive parents shall not be considered a factor in making a waiver under paragraph (2)(B). Nothing in this subsection or
(i) Adjustment in status of certain aliens physically present in United States
(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States—
(A) who—
(i) entered the United States without inspection; or
(ii) is within one of the classes enumerated in subsection (c) of this section;
(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under
(i) a petition for classification under
(ii) an application for a labor certification under
(C) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on December 21, 2000;
may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equalling $1,000 as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under
(i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under
(ii) 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
(iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section.
(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if—
(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and
(B) an immigrant visa is immediately available to the alien at the time the application is filed.
(3)(A) The portion of each application fee (not to exceed $200) that the Attorney General determines is required to process an application under this section and is remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of
(B) Any remaining portion of such fees remitted under such paragraphs shall be deposited by the Attorney General into the Breached Bond/Detention Fund established under
(j) Adjustment to permanent resident status
(1) If, in the opinion of the Attorney General—
(A) a nonimmigrant admitted into the United States under
(B) the provision of such information has substantially contributed to the success of an authorized criminal investigation or the prosecution of an individual described in subclause (III) of that section,
the Attorney General may adjust the status of the alien (and the spouse, married and unmarried sons and daughters, and parents of the alien if admitted under that section) to that of an alien lawfully admitted for permanent residence if the alien is not described in
(2) If, in the sole discretion of the Attorney General—
(A) a nonimmigrant admitted into the United States under
(B) the provision of such information has substantially contributed to—
(i) the prevention or frustration of an act of terrorism against a United States person or United States property, or
(ii) the success of an authorized criminal investigation of, or the prosecution of, an individual involved in such an act of terrorism, and
(C) the nonimmigrant has received a reward under
the Attorney General may adjust the status of the alien (and the spouse, married and unmarried sons and daughters, and parents of the alien if admitted under such section) to that of an alien lawfully admitted for permanent residence if the alien is not described in
(3) Upon the approval of adjustment of status under paragraph (1) or (2), the Attorney General shall record the alien's lawful admission for permanent residence as of the date of such approval and the Secretary of State shall reduce by one the number of visas authorized to be issued under
(k) Inapplicability of certain provisions for certain employment-based immigrants
An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of
(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days—
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien's admission.
(l) Adjustment of status for victims of trafficking
(1) If, in the opinion of the Attorney General, a nonimmigrant admitted into the United States under
(A) has been physically present in the United States for a continuous period of at least 3 years since the date of admission as a nonimmigrant under
(B) has, throughout such period, been a person of good moral character, and
(C)(i) has, during such period, complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking, or
(ii) the alien would suffer extreme hardship involving unusual and severe harm upon removal from the United States,
the Attorney General may adjust the status of the alien (and any person admitted under
(2) Paragraph (1) shall not apply to an alien admitted under
(A) paragraphs (1) and (4) of
(B) any other provision of such section (excluding paragraphs (3), (10)(C), and (10(E)),4 if the activities rendering the alien inadmissible under the provision were caused by, or were incident to, the victimization described in
(3) An alien shall be considered to have failed to maintain continuous physical presence in the United States under paragraph (1)(A) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
(4)(A) The total number of aliens whose status may be adjusted under paragraph (1) during any fiscal year may not exceed 5,000.
(B) The numerical limitation of subparagraph (A) shall only apply to principal aliens and not to the spouses, sons, daughters, siblings, or parents of such aliens.
(5) Upon the approval of adjustment of status under paragraph (1), the Attorney General shall record the alien's lawful admission for permanent residence as of the date of such approval.
(m) Adjustment of status for victims of crimes against women
(1) The Attorney General may adjust the status of an alien admitted into the United States (or otherwise provided nonimmigrant status) under
(A) the alien has been physically present in the United States for a continuous period of at least 3 years since the date of admission as a nonimmigrant under clause (i) or (ii) of
(B) in the opinion of the Attorney General, the alien's continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.
(2) An alien shall be considered to have failed to maintain continuous physical presence in the United States under paragraph (1)(A) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days unless the absence is in order to assist in the investigation or prosecution or unless an official involved in the investigation or prosecution certifies that the absence was otherwise justified.
(3) Upon approval of adjustment of status under paragraph (1) of an alien described in
(4) Upon the approval of adjustment of status under paragraph (1) or (3), the Attorney General shall record the alien's lawful admission for permanent residence as of the date of such approval.
(June 27, 1952, ch. 477, title II, ch. 5, §245,
References in Text
Subsection (p) of
Section 202 of the Immigration Reform and Control Act of 1986, referred to in subsec. (i)(1), is section 202 of
Section 301 of the Immigration Act of 1990, referred to in subsec. (i)(1)(iii), is section 301 of
Amendments
2003—Subsec. (l).
Subsec. (l)(1).
Subsec. (l)(2).
Subsec. (l)(3).
Subsec. (l)(3)(B).
Subsec. (l)(4), (5).
Subsec. (m).
2000—Subsec. (a).
Subsec. (c).
Subsec. (d).
Subsec. (e)(1).
Subsec. (e)(3).
Subsec. (f).
Subsec. (i)(1)(B)(i).
Subsec. (i)(1)(C).
Subsec. (i)(3)(B).
Subsec. (l).
Subsec. (m).
1997—Subsec. (c)(2).
Subsec. (i)(1).
"(A) entered the United States without inspection; or
"(B) is within one of the classes enumerated in subsection (c) of this section,
may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence."
Subsec. (i)(3)(B).
Subsec. (k).
1996—Subsec. (c)(6).
Subsec. (c)(7), (8).
Subsec. (e)(2).
Subsec. (e)(3).
Subsec. (i).
Subsec. (i)(1).
Subsec. (i)(3).
Subsec. (j).
Subsec. (j)(3).
1994—Subsec. (c)(5).
Subsec. (h)(2)(B).
Subsec. (i).
1991—Subsec. (b).
Subsec. (c)(2).
Subsec. (e)(3).
Subsec. (g).
Subsec. (h).
1990—Subsec. (b).
Subsec. (e)(1).
Subsec. (e)(3).
Subsec. (f).
1988—Subsec. (c)(2).
Subsec. (c)(4).
Subsec. (d).
1986—Subsec. (c).
Subsec. (c)(2).
Subsec. (c)(4).
Subsec. (d).
Subsec. (e).
1981—Subsec. (c)(2).
1976—Subsec. (a).
Subsec. (b).
Subsec. (c).
1965—Subsec. (b).
Subsec. (c).
1960—Subsec. (a).
1958—
Effective Date of 2000 Amendments
Amendment by section 1(a)(2) [title XI, §1102(c), (d)(2)] of
Amendment by section 1(a)(2) [title XI, §1103(c)(3)] of
Effective Date of 1996 Amendments
Amendment by section 308(f)(1)(O), (2)(C), (g)(10)(B) of
Section 376(c) of div. C of
Amendment by section 671(a)(4)(A), (5) of
Amendment by
Effective Date of 1994 Amendments
Amendment by
Amendment by
Effective Date of 1991 Amendments
Amendment by section 302(d)(2), (e)(7) of
Section 308(a) of
Amendment by
Effective Date of 1990 Amendment
Amendment by sections 121(b)(4), 162(e)(3) of
Amendment by section 702(a) of
Effective Date of 1988 Amendment
Section 2(f)(2) of
Amendment by section 2(f)(1), (p)(3) of
Amendment by section 7(b) of
Effective Date of 1986 Amendments
Section 3(d)(2) of
Amendment by section 5(a) of
Amendment by section 117 of
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Permitting Motion to Reopen
Adjustment of Status of Certain Jewish Syrian Nationals
Adjustment of Status of Certain Haitian Nationals
"(a)
"(1)
"(A) applies for such adjustment before April 1, 2000; and
"(B) is otherwise admissible to the United States for permanent residence, except that, in determining such admissibility, the grounds for inadmissibility specified in paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Immigration and Nationality Act [
"(2)
"(A) the provisions of section 241(a)(5) of the Immigration and Nationality Act [
"(B) the Attorney General may grant the alien a waiver on the grounds of inadmissibility under subparagraphs (A) and (C) of section 212(a)(9) of such Act [
In granting waivers under subparagraph (B), the Attorney General shall use standards used in granting consent under subparagraphs (A)(iii) and (C)(ii) of such section 212(a)(9).
"(3)
"(b)
"(1) was present in the United States on December 31, 1995, who—
"(A) filed for asylum before December 31, 1995,
"(B) was paroled into the United States prior to December 31, 1995, after having been identified as having a credible fear of persecution, or paroled for emergent reasons or reasons deemed strictly in the public interest, or
"(C) was a child (as defined in the text above subparagraph (A) of section 101(b)(1) of the Immigration and Nationality Act (
"(i) arrived in the United States without parents in the United States and has remained without parents in the United States since such arrival,
"(ii) became orphaned subsequent to arrival in the United States, or
"(iii) was abandoned by parents or guardians prior to April 1, 1998 and has remained abandoned since such abandonment; and
"(2) has been physically present in the United States for a continuous period beginning not later than December 31, 1995, and ending not earlier than the date the application for such adjustment is filed, except that an alien shall not be considered to have failed to maintain continuous physical presence by reason of an absence, or absences, from the United States for any period or periods amounting in the aggregate to not more than 180 days.
"(c)
"(1)
"(2)
"(3)
"(d)
"(1)
"(A) the alien is a national of Haiti;
"(B)(i) the alien is the spouse, child, or unmarried son or daughter of an alien whose status is adjusted to that of an alien lawfully admitted for permanent residence under subsection (a), except that, in the case of such an unmarried son or daughter, the son or daughter shall be required to establish that the son or daughter has been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier than the date on which the application for such adjustment is filed;
"(ii) at the time of filing of the application for adjustment under subsection (a), the alien is the spouse or child of an alien whose status is adjusted to that of an alien lawfully admitted for permanent residence under subsection (a) and the spouse, child, or child of the spouse has been battered or subjected to extreme cruelty by the individual described in subsection (a); and
"(iii) in acting on applications under this section with respect to spouses or children who have been battered or subjected to extreme cruelty, the Attorney General shall apply the provisions of section 204(a)(1)(H) [
"(C) the alien applies for such adjustment and is physically present in the United States on the date the application is filed; and
"(D) the alien is otherwise admissible to the United States for permanent residence, except that, in determining such admissibility, the grounds for inadmissibility specified in paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Immigration and Nationality Act [
"(2)
"(e)
"(1) applicants for adjustment of status under section 245 of the Immigration and Nationality Act [
"(2) aliens subject to removal proceedings under section 240 of such Act [
"(f)
"(g)
"(h)
"(i)
"(j)
"(k) Not later than 6 months after the date of the enactment of this Act [Oct. 21, 1998], and every 6 months thereafter (until all applications for adjustment of status under this section have been finally adjudicated), the Comptroller General of the United States shall submit to the Committees on the Judiciary and the Committees on Appropriations of the United States House of Representatives and the United States Senate a report containing the following:
"(1)(A) The number of aliens who applied for adjustment of status under subsection (a), including a breakdown specifying the number of such applicants who are described in subparagraph (A), (B), or (C) of subsection (b)(1), respectively.
"(B) The number of aliens described in subparagraph (A) whose status was adjusted under this section, including a breakdown described in the subparagraph.
"(2)(A) The number of aliens who applied for adjustment of status under subsection (d), including a breakdown specifying the number of such applicants who are sponsors, children, or unmarried sons or daughters described in such subsection, respectively.
"(B) The number of aliens described in subparagraph (A) whose status was adjusted under this section, including a breakdown described in the subparagraph."
[
Adjustment of Status of Certain Nicaraguans and Cubans
"(a)
"(1)
"(A) applies for such adjustment before April 1, 2000; and
"(B) is otherwise admissible to the United States for permanent residence, except in determining such admissibility the grounds for inadmissibility specified in paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Immigration and Nationality Act [
"(2)
"(A) the provisions of section 241(a)(5) of the Immigration and Nationality Act [
"(B) the Attorney General may grant the alien a waiver on the grounds of inadmissibility under subparagraphs (A) and (C) of section 212(a)(9) of such Act [
In granting waivers under subparagraph (B), the Attorney General shall use standards used in granting consent under subparagraphs (A)(iii) and (C)(ii) of such section 212(a)(9).
"(3)
"(b)
"(1)
"(2)
"(A) shall demonstrate that the alien, prior to December 1, 1995—
"(i) applied to the Attorney General for asylum;
"(ii) was issued an order to show cause under section 242 or 242B of the Immigration and Nationality Act [
"(iii) was placed in exclusion proceedings under section 236 of such Act [
"(iv) applied for adjustment of status under section 245 of such Act [
"(v) applied to the Attorney General for employment authorization;
"(vi) performed service, or engaged in a trade or business, within the United States which is evidenced by records maintained by the Commissioner of Social Security; or
"(vii) applied for any other benefit under the Immigration and Nationality Act [
"(B) shall make such other demonstration of physical presence as the Attorney General may provide for by regulation.
"(c)
"(1)
"(2)
"(3)
"(d)
"(1)
"(A) the alien is a national of Nicaragua or Cuba;
"(B) the alien—
"(i) is the spouse, child, or unmarried son or daughter of an alien whose status is adjusted to that of an alien lawfully admitted for permanent residence under subsection (a), except that in the case of such an unmarried son or daughter, the son or daughter shall be required to establish that the son or daughter has been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier than the date on which the application for adjustment under this subsection is filed; or
"(ii) was, at the time at which an alien filed for adjustment under subsection (a), the spouse or child of an alien whose status is adjusted to that of an alien lawfully admitted for permanent residence under subsection (a), and the spouse, child, or child of the spouse has been battered or subjected to extreme cruelty by the alien that filed for adjustment under subsection (a);
"(C) the alien applies for such adjustment and is physically present in the United States on the date the application is filed;
"(D) the alien is otherwise admissible to the United States for permanent residence, except in determining such admissibility the grounds for inadmissibility specified in paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Immigration and Nationality Act [
"(E) applies for such adjustment before April 1, 2000.
"(2)
"(A) shall demonstrate that such period commenced not later than December 1, 1995, in a manner consistent with subsection (b)(2); and
"(B) shall not be considered to have failed to maintain continuous physical presence by reason of an absence, or absences, from the United States for any period in the aggregate not exceeding 180 days.
"(3)
"(e)
"(1) applicants for adjustment of status under section 245 of the Immigration and Nationality Act [
"(2) aliens subject to removal proceedings under section 240 of such Act [
"(f)
"(g)
"(h)
Adjustment of Status for Certain Polish and Hungarian Parolees
Section 646 of div. C of
"(a)
"(1) applies for such adjustment;
"(2) has been physically present in the United States for at least 1 year and is physically present in the United States on the date the application for such adjustment is filed;
"(3) is admissible to the United States as an immigrant, except as provided in subsection (c); and
"(4) pays a fee (determined by the Attorney General) for the processing of such application.
"(b)
"(1) was a national of Poland or Hungary; and
"(2) was inspected and granted parole into the United States during the period beginning on November 1, 1989, and ending on December 31, 1991, after being denied refugee status.
"(c)
"(d)
"(e)
Fingerprint Checks
Section 506(d) of
Adjustment of Status of Certain Nationals of People's Republic of China
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Chinese Student Protection Act of 1992'.
"SEC. 2. ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS OF CERTAIN NATIONALS OF THE PEOPLE'S REPUBLIC OF CHINA.
"(a)
"(1) The alien shall be deemed to have had a petition approved under section 204(a) of such Act [
"(2) The application shall be considered without regard to whether an immigrant visa number is immediately available at the time the application is filed.
"(3) In determining the alien's admissibility as an immigrant, and the alien's eligibility for an immigrant visa—
"(A) paragraphs (5) and (7)(A) of section 212(a) and section 212(e) of such Act [
"(B) the Attorney General may waive any other provision of section 212(a) (other than paragraph (2)(C) and subparagraph (A), (B), (C), or (E) of paragraph (3)) of such Act with respect to such adjustment for humanitarian purposes, for purposes of assuring family unity, or if otherwise in the public interest.
"(4) The numerical level of section 202(a)(2) of such Act [
"(5) Section 245(c) of such Act [
"(b)
"(1) is a national of the People's Republic of China described in section 1 of Executive Order No. 12711 [
"(2) has resided continuously in the United States since April 11, 1990 (other than brief, casual, and innocent absences); and
"(3) was not physically present in the People's Republic of China for longer than 90 days after such date and before the date of the enactment of this Act [Oct. 9, 1992].
"(c)
"(1)
"(2)
"(d)
"(1)
"(2)
"(A) 300 immigrant visa numbers shall be deemed to have been previously issued to natives of that foreign state under section 203(b)(3)(A)(i) of such Act [
"(B) 700 immigrant visa numbers shall be deemed to have been previously issued to natives of that foreign state under section 203(b)(5) of such Act in that year.
"(3)
"(A)
"(i) beginning with the fiscal year in which the application period begins; and
"(ii) ending with the first fiscal year by the end of which the cumulative number of aliens counted for all fiscal years under subparagraph (B) equals or exceeds the total number of aliens whose status has been adjusted under section 245 of the Immigration and Nationality Act [
"(B)
"(e)
Adjustment of Status for Certain H–1 Nonimmigrant Nurses
"(a)
"(1) who, as of September 1, 1989, has the status of a nonimmigrant under paragraph (15)(H)(i) of section 101(a) of such Act [
"(2) who, for at least 3 years before the date of application for adjustment of status (whether or not before, on, or after, the date of the enactment of this Act [Dec. 18, 1989]), has been employed as a registered nurse in the United States, and
"(3) whose continued employment as a registered nurse in the United States meets the standards established for the certification described in section 212(a)(5)(A) of such Act [
The Attorney General shall promulgate regulations to carry out this subsection by not later than 90 days after the date of the enactment of this Act.
"(b)
"(c)
"(d)
[Section 302(e)(10) of
[Section 307(l) of
Adjustment of Status for Certain Soviet and Indochinese Parolees
"(a) The status of certain aliens from Vietnam, Cambodia, and Laos described in subsection (b) of this section may be adjusted by the Attorney General, under such regulations as she may prescribe, to that of an alien lawfully admitted permanent residence if—
"(1) within 3 years after the date of promulgation by the Attorney General of regulations in connection with this title the alien makes an application for such adjustment and pays the appropriate fee;
"(2) the alien is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence except as described in subsection (c); and
"(3) the alien had been physically present in the United States prior to October 1, 1997.
"(b) The benefits provided by subsection (a) shall apply to any alien who is a native or citizen of Vietnam, Laos, or Cambodia and who was inspected and paroled into the United States before October 1, 1997 and was physically present in the United States on October 1, 1997; and
"(1) was paroled into the United States from Vietnam under the auspices of the Orderly Departure Program; or
"(2) was paroled into the United States from a refugee camp in East Asia; or
"(3) was paroled into the United States from a displaced person camp administered by the United Nations High Commissioner for Refugees in Thailand.
"(c)
"(d)
"(e)
"(f)
"(a)
"(1) applies for such adjustment,
"(2) has been physically present in the United States for at least 1 year and is physically present in the United States on the date the application for such adjustment is filed,
"(3) is admissible to the United States as an immigrant, except as provided in subsection (c), and
"(4) pays a fee (determined by the Attorney General) for the processing of such application.
"(b)
"(1) was a national of an independent state of the former Soviet Union, Estonia, Latvia, Lithuania, Vietnam, Laos, or Cambodia, and
"(2) was inspected and granted parole into the United States during the period beginning on August 15, 1988, and ending on September 30, 2003, after being denied refugee status.
"(c)
"(d)
"(e)
[Section 307(l) of
Adjustment of Status of Nonimmigrant Aliens Residing in the Virgin Islands to Permanent Resident Alien Status
Development of Eligibility Criteria for Admission of Refugees From Cambodia
Cuban Refugees: Adjustment of Status
Section 606 of div. C of
"(a)
"(b)
"
"
" '(c) Nothing contained in subsection (b) of this section [amending subsec. (c) of this section] shall be construed to affect the validity of any application for adjustment under section 245 [this section] filed with the Attorney General prior to December 1, 1965, which would have been valid on that date; but as to all such applications the statutes or parts of statutes repealed or amended by this Act [
"
"
[
[Section 204(b)(1)(C) of
Section Referred to in Other Sections
This section is referred to in
1 So in original. The word "or" probably should not appear.
2 So in original. The comma probably should be a semicolon.
3 See References in Text note below.
4 So in original. Probably should be "(10)(E)),".
§1255a. Adjustment of status of certain entrants before January 1, 1982, to that of person admitted for lawful residence
(a) Temporary resident status
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) Timely application
(A) During application period
Except as provided in subparagraph (B), the alien must apply for such adjustment during the 12-month period beginning on a date (not later than 180 days after November 6, 1986) designated by the Attorney General.
(B) Application within 30 days of show-cause order
An alien who, at any time during the first 11 months of the 12-month period described in subparagraph (A), is the subject of an order to show cause issued under
(C) Information included in application
Each application under this subsection shall contain such information as the Attorney General may require, including information on living relatives of the applicant with respect to whom a petition for preference or other status may be filed by the applicant at any later date under
(2) Continuous unlawful residence since 1982
(A) In general
The alien must establish that he entered the United States before January 1, 1982, and that he has resided continuously in the United States in an unlawful status since such date and through the date the application is filed under this subsection.
(B) Nonimmigrants
In the case of an alien who entered the United States as a nonimmigrant before January 1, 1982, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien's unlawful status was known to the Government as of such date.
(C) Exchange visitors
If the alien was at any time a nonimmigrant exchange alien (as defined in
(3) Continuous physical presence since November 6, 1986
(A) In general
The alien must establish that the alien has been continuously physically present in the United States since November 6, 1986.
(B) Treatment of brief, casual, and innocent absences
An alien shall not be considered to have failed to maintain continuous physical presence in the United States for purposes of subparagraph (A) by virtue of brief, casual, and innocent absences from the United States.
(C) Admissions
Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for adjustment of status under this subsection.
(4) Admissible as immigrant
The alien must establish that he—
(A) is admissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2) of this section,
(B) has not been convicted of any felony or of three or more misdemeanors committed in the United States,
(C) has not assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion, and
(D) is registered or registering under the Military Selective Service Act [50 App. U.S.C. 451 et seq.], if the alien is required to be so registered under that Act.
For purposes of this subsection, an alien in the status of a Cuban and Haitian entrant described in paragraph (1) or (2)(A) of section 501(e) of
(b) Subsequent adjustment to permanent residence and nature of temporary resident status
(1) Adjustment to permanent residence
The Attorney General shall adjust the status of any alien provided lawful temporary resident status under subsection (a) of this section to that of an alien lawfully admitted for permanent residence if the alien meets the following requirements:
(A) Timely application after one year's residence
The alien must apply for such adjustment during the 2-year period beginning with the nineteenth month that begins after the date the alien was granted such temporary resident status.
(B) Continuous residence
(i) In general
The alien must establish that he has continuously resided in the United States since the date the alien was granted such temporary resident status.
(ii) Treatment of certain absences
An alien shall not be considered to have lost the continuous residence referred to in clause (i) by reason of an absence from the United States permitted under paragraph (3)(A).
(C) Admissible as immigrant
The alien must establish that he—
(i) is admissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2) of this section, and
(ii) has not been convicted of any felony or three or more misdemeanors committed in the United States.
(D) Basic citizenship skills
(i) In general
The alien must demonstrate that he either—
(I) meets the requirements of
(II) is satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and such a knowledge and understanding of the history and government of the United States.
(ii) Exception for elderly or developmentally disabled individuals
The Attorney General may, in his discretion, waive all or part of the requirements of clause (i) in the case of an alien who is 65 years of age or older or who is developmentally disabled.
(iii) Relation to naturalization examination
In accordance with regulations of the Attorney General, an alien who has demonstrated under clause (i)(I) that the alien meets the requirements of
(2) Termination of temporary residence
The Attorney General shall provide for termination of temporary resident status granted an alien under subsection (a) of this section—
(A) if it appears to the Attorney General that the alien was in fact not eligible for such status;
(B) if the alien commits an act that (i) makes the alien inadmissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2) of this section, or (ii) is convicted of any felony or three or more misdemeanors committed in the United States; or
(C) at the end of the 43rd first month beginning after the date the alien is granted such status, unless the alien has filed an application for adjustment of such status pursuant to paragraph (1) and such application has not been denied.
(3) Authorized travel and employment during temporary residence
During the period an alien is in lawful temporary resident status granted under subsection (a) of this section—
(A) Authorization of travel abroad
The Attorney General shall, in accordance with regulations, permit the alien to return to the United States after such brief and casual trips abroad as reflect an intention on the part of the alien to adjust to lawful permanent resident status under paragraph (1) and after brief temporary trips abroad occasioned by a family obligation involving an occurrence such as the illness or death of a close relative or other family need.
(B) Authorization of employment
The Attorney General shall grant the alien authorization to engage in employment in the United States and provide to that alien an "employment authorized" endorsement or other appropriate work permit.
(c) Applications for adjustment of status
(1) To whom may be made
The Attorney General shall provide that applications for adjustment of status under subsection (a) of this section may be filed—
(A) with the Attorney General, or
(B) with a qualified designated entity, but only if the applicant consents to the forwarding of the application to the Attorney General.
As used in this section, the term "qualified designated entity" means an organization or person designated under paragraph (2).
(2) Designation of qualified entities to receive applications
For purposes of assisting in the program of legalization provided under this section, the Attorney General—
(A) shall designate qualified voluntary organizations and other qualified State, local, and community organizations, and
(B) may designate such other persons as the Attorney General determines are qualified and have substantial experience, demonstrated competence, and traditional long-term involvement in the preparation and submittal of applications for adjustment of status under
(3) Treatment of applications by designated entities
Each qualified designated entity must agree to forward to the Attorney General applications filed with it in accordance with paragraph (1)(B) but not to forward to the Attorney General applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Attorney General.
(4) Limitation on access to information
Files and records of qualified designated entities relating to an alien's seeking assistance or information with respect to filing an application under this section are confidential and the Attorney General and the Service shall not have access to such files or records relating to an alien without the consent of the alien.
(5) Confidentiality of information
(A) In general
Except as provided in this paragraph, neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—
(i) use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application, for enforcement of paragraph (6), or for the preparation of reports to Congress under section 404 of the Immigration Reform and Control Act of 1986;
(ii) make any publication whereby the information furnished by any particular applicant can be identified; or
(iii) permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.
(B) Required disclosures
The Attorney General shall provide the information furnished under this section, and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, when such information is requested in writing by such entity, or to an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).
(C) Authorized disclosures
The Attorney General may provide, in the Attorney General's discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under
(D) Construction
(i) In general
Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Service pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.
(ii) Criminal convictions
Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes.
(E) Crime
Whoever knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be fined not more than $10,000.
(6) Penalties for false statements in applications
Whoever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined in accordance with title 18 or imprisoned not more than five years, or both.
(7) Application fees
(A) Fee schedule
The Attorney General shall provide for a schedule of fees to be charged for the filing of applications for adjustment under subsection (a) or (b)(1) of this section. The Attorney General shall provide for an additional fee for filing an application for adjustment under subsection (b)(1) of this section after the end of the first year of the 2-year period described in subsection (b)(1)(A) of this section.
(B) Use of fees
The Attorney General shall deposit payments received under this paragraph in a separate account and amounts in such account shall be available, without fiscal year limitation, to cover administrative and other expenses incurred in connection with the review of applications filed under this section.
(C) Immigration-related unfair employment practices
Not to exceed $3,000,000 of the unobligated balances remaining in the account established in subparagraph (B) shall be available in fiscal year 1992 and each fiscal year thereafter for grants, contracts, and cooperative agreements to community-based organizations for outreach programs, to be administered by the Office of Special Counsel for Immigration-Related Unfair Employment Practices: Provided, That such amounts shall be in addition to any funds appropriated to the Office of Special Counsel for such purposes: Provided further, That none of the funds made available by this section shall be used by the Office of Special Counsel to establish regional offices.
(d) Waiver of numerical limitations and certain grounds for exclusion
(1) Numerical limitations do not apply
The numerical limitations of
(2) Waiver of grounds for exclusion
In the determination of an alien's admissibility under subsections (a)(4)(A), (b)(1)(C)(i), and (b)(2)(B) of this section—
(A) Grounds of exclusion not applicable
The provisions of paragraphs (5) and (7)(A) of
(B) Waiver of other grounds
(i) In general
Except as provided in clause (ii), the Attorney General may waive any other provision of
(ii) Grounds that may not be waived
The following provisions of
(I) Paragraphs (2)(A) and (2)(B) (relating to criminals).
(II) Paragraph (2)(C) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marihuana.
(III) Paragraph (3) (relating to security and related grounds).
(IV) Paragraph (4) (relating to aliens likely to become public charges) insofar as it relates to an application for adjustment to permanent residence.
Subclause (IV) (prohibiting the waiver of
(iii) Special rule for determination of public charge
An alien is not ineligible for adjustment of status under this section due to being inadmissible under
(C) Medical examination
The alien shall be required, at the alien's expense, to undergo such a medical examination (including a determination of immunization status) as is appropriate and conforms to generally accepted professional standards of medical practice.
(e) Temporary stay of deportation and work authorization for certain applicants
(1) Before application period
The Attorney General shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1)(A) of this section and who can establish a prima facie case of eligibility to have his status adjusted under subsection (a) of this section (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien—
(A) may not be deported, and
(B) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit.
(2) During application period
The Attorney General shall provide that in the case of an alien who presents a prima facie application for adjustment of status under subsection (a) of this section during the application period, and until a final determination on the application has been made in accordance with this section, the alien—
(A) may not be deported, and
(B) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit.
(f) Administrative and judicial review
(1) Administrative and judicial review
There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
(2) No review for late filings
No denial of adjustment of status under this section based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceeding of the United States Government.
(3) Administrative review
(A) Single level of administrative appellate review
The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of a determination described in paragraph (1).
(B) Standard for review
Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.
(4) Judicial review
(A) Limitation to review of deportation
There shall be judicial review of such a denial only in the judicial review of an order of deportation under
(B) Standard for judicial review
Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.
(C) Jurisdiction of courts
Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1) of this section, or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer.
(g) Implementation of section
(1) Regulations
The Attorney General, after consultation with the Committees on the Judiciary of the House of Representatives and of the Senate, shall prescribe—
(A) regulations establishing a definition of the term "resided continuously", as used in this section, and the evidence needed to establish that an alien has resided continuously in the United States for purposes of this section, and
(B) such other regulations as may be necessary to carry out this section.
(2) Considerations
In prescribing regulations described in paragraph (1)(A)—
(A) Periods of continuous residence
The Attorney General shall specify individual periods, and aggregate periods, of absence from the United States which will be considered to break a period of continuous residence in the United States and shall take into account absences due merely to brief and casual trips abroad.
(B) Absences caused by deportation or advanced parole
The Attorney General shall provide that—
(i) an alien shall not be considered to have resided continuously in the United States, if, during any period for which continuous residence is required, the alien was outside the United States as a result of a departure under an order of deportation, and
(ii) any period of time during which an alien is outside the United States pursuant to the advance parole procedures of the Service shall not be considered as part of the period of time during which an alien is outside the United States for purposes of this section.
(C) Waivers of certain absences
The Attorney General may provide for a waiver, in the discretion of the Attorney General, of the periods specified under subparagraph (A) in the case of an absence from the United States due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.
(D) Use of certain documentation
The Attorney General shall require that—
(i) continuous residence and physical presence in the United States must be established through documents, together with independent corroboration of the information contained in such documents, and
(ii) the documents provided under clause (i) be employment-related if employment-related documents with respect to the alien are available to the applicant.
(3) Interim final regulations
Regulations prescribed under this section may be prescribed to take effect on an interim final basis if the Attorney General determines that this is necessary in order to implement this section in a timely manner.
(h) Temporary disqualification of newly legalized aliens from receiving certain public welfare assistance
(1) In general
During the five-year period beginning on the date an alien was granted lawful temporary resident status under subsection (a) of this section, and notwithstanding any other provision of law—
(A) except as provided in paragraphs (2) and (3), the alien is not eligible for—
(i) any program of financial assistance furnished under Federal law (whether through grant, loan, guarantee, or otherwise) on the basis of financial need, as such programs are identified by the Attorney General in consultation with other appropriate heads of the various departments and agencies of Government (but in any event including the State program of assistance under part A of title IV of the Social Security Act [
(ii) medical assistance under a State plan approved under title XIX of the Social Security Act [
(iii) assistance under the Food Stamp Act of 1977 [
(B) a State or political subdivision therein may, to the extent consistent with subparagraph (A) and paragraphs (2) and (3), provide that the alien is not eligible for the programs of financial assistance or for medical assistance described in subparagraph (A)(ii) furnished under the law of that State or political subdivision.
Unless otherwise specifically provided by this section or other law, an alien in temporary lawful residence status granted under subsection (a) of this section shall not be considered (for purposes of any law of a State or political subdivision providing for a program of financial assistance) to be permanently residing in the United States under color of law.
(2) Exceptions
Paragraph (1) shall not apply—
(A) to a Cuban and Haitian entrant (as defined in paragraph (1) or (2)(A) of section 501(e) of
(B) in the case of assistance (other than assistance under a State program funded under part A of title IV of the Social Security Act [
(3) Restricted medicaid benefits
(A) Clarification of entitlement
Subject to the restrictions under subparagraph (B), for the purpose of providing aliens with eligibility to receive medical assistance—
(i) paragraph (1) shall not apply,
(ii) aliens who would be eligible for medical assistance but for the provisions of paragraph (1) shall be deemed, for purposes of title XIX of the Social Security Act [
(iii) aliens lawfully admitted for temporary residence under this section, such status not having changed, shall be considered to be permanently residing in the United States under color of law.
(B) Restriction of benefits
(i) Limitation to emergency services and services for pregnant women
Notwithstanding any provision of title XIX of the Social Security Act [
(I) emergency services (as defined for purposes of section 1916(a)(2)(D) of the Social Security Act [
(II) services described in section 1916(a)(2)(B) of such Act (relating to service for pregnant women).
(ii) No restriction for exempt aliens and children
The restrictions of clause (i) shall not apply to aliens who are described in paragraph (2) or who are under 18 years of age.
(C) Definition of medical assistance
In this paragraph, the term "medical assistance" refers to medical assistance under a State plan approved under title XIX of the Social Security Act [
(4) Treatment of certain programs
Assistance furnished under any of the following provisions of law shall not be construed to be financial assistance described in paragraph (1)(A)(i):
(A) The Richard B. Russell National School Lunch Act [
(B) The Child Nutrition Act of 1966 [
(C) The Carl D. Perkins Vocational and Technical Education Act of 1998 [
(D) Title I of the Elementary and Secondary Education Act of 1965 [
(E) The Headstart-Follow Through Act [
(F) Title I of the Workforce Investment Act of 1998 [
(G) Title IV of the Higher Education Act of 1965 [
(H) The Public Health Service Act [
(I) Titles V, XVI, and XX [
(5) Adjustment not affecting Fascell-Stone benefits
For the purpose of section 501 of the Refugee Education Assistance Act of 1980 (
(i) Dissemination of information on legalization program
Beginning not later than the date designated by the Attorney General under subsection (a)(1)(A) of this section, the Attorney General, in cooperation with qualified designated entities, shall broadly disseminate information respecting the benefits which aliens may receive under this section and the requirements to obtain such benefits.
(June 27, 1952, ch. 477, title II, ch. 5, §245A, as added
References in Text
The Military Selective Service Act, referred to in subsec. (a)(4)(D), is act June 24, 1948, ch. 625,
Section 404 of the Immigration Reform and Control Act of 1986, referred to in subsec. (c)(5)(A)(i), is section 404 of
The Social Security Act, referred to in subsec. (h)(1)(A), (2)(B), (3)(A)(ii), (B)(i), (C), (4)(I), is act Aug. 14, 1935, ch. 531,
Section 301 of the Social Security Amendments of 1972, referred to in subsec. (h)(4)(I), is section 301 of
The Food Stamp Act of 1977, referred to in subsec. (h)(1)(A)(iii), is
The Richard B. Russell National School Lunch Act, referred to in subsec. (h)(4)(A), is act June 4, 1946, ch. 281,
The Child Nutrition Act of 1966, referred to in subsec. (h)(4)(B), is
The Carl D. Perkins Vocational and Technical Education Act of 1998, referred to in subsec. (h)(4)(C), is
The Elementary and Secondary Education Act of 1965, referred to in subsec. (h)(4)(D), is
The Headstart-Follow Through Act, referred to in subsec. (h)(4)(E), is title V of
The Workforce Investment Act of 1998, referred to in subsec. (h)(4)(F), is
The Higher Education Act of 1965, referred to in subsec. (h)(4)(G), is
The Public Health Service Act, referred to in subsec. (h)(4)(H), is act July 1, 1944, ch. 373,
Prior Provisions
A prior section 1255a,
Amendments
1999—Subsec. (h)(4)(A).
1998—Subsec. (h)(4)(C).
Subsec. (h)(4)(F).
1996—Subsec. (a)(1)(B).
Subsec. (c)(5).
"(I) for identification of the alien when there is reason to believe that the alien has been killed or severely incapacitated; or
"(II) for criminal law enforcement purposes against the alien whose application is to be disclosed."
Subsec. (f)(4)(A).
Subsec. (f)(4)(C).
Subsec. (h)(1)(A)(i).
Subsec. (h)(2)(B).
1994—Subsec. (b)(1)(D)(i)(I), (iii).
Subsec. (c)(7)(C).
Subsec. (h)(4)(D).
1991—Subsec. (c)(7)(C).
Subsec. (d)(2)(B)(ii).
1990—Subsec. (b)(1)(A).
Subsec. (b)(2)(C).
Subsec. (c)(7)(A).
Subsec. (d)(2)(A).
Subsec. (d)(2)(B)(ii).
Subsec. (d)(2)(B)(ii)(I).
Subsec. (d)(2)(B)(ii)(II).
Subsec. (d)(2)(B)(ii)(III).
Subsec. (d)(2)(B)(ii)(IV).
Subsec. (d)(2)(B)(ii)(V).
Subsec. (d)(2)(B)(iii).
1988—Subsec. (a)(1)(B).
Subsec. (b)(1)(D)(ii).
Subsec. (c)(1).
Subsec. (c)(5).
Subsec. (c)(5)(A).
Subsec. (d)(2)(B)(ii).
Subsec. (d)(2)(B)(ii)(II).
Effective Date of 1998 Amendment
Amendment by section 101(f) [title VIII, §405(d)(4)] of
Effective Date of 1996 Amendments
Amendment by section 308(g)(2)(B), (5)(A)(iii) of
Section 377(b) of div. C of
Amendment by section 384(d)(1) of
Amendment by
Effective Date of 1994 Amendment
Amendment by section 219(l)(1) of
Effective Date of 1991 Amendment
Section 307(l) of
Effective Date of 1990 Amendment
Amendment by section 603(a)(13) of
Effective Date of 1988 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Report on Citizenship of Certain Legalized Aliens
Section 109 of
"(1) The number of applications for citizenship filed.
"(2) The number of applications approved.
"(3) The number of applications denied.
"(4) The number of applications pending."
Family Unity
Section 301 of
"(a)
"(1) may not be removed or otherwise required to depart from the United States on a ground specified in paragraph (1)(A), (1)(B), (1)(C), (3)(A), of section 237(a) of the Immigration and Nationality Act [
"(2) shall be granted authorization to engage in employment in the United States and be provided an 'employment authorized' endorsement or other appropriate work permit.
"(b)
"(1) The term 'eligible immigrant' means a qualified immigrant who is the spouse or unmarried child of a legalized alien.
"(2) The term 'legalized alien' means an alien lawfully admitted for temporary or permanent residence who was provided—
"(A) temporary or permanent residence status under section 210 of the Immigration and Nationality Act [
"(B) temporary or permanent residence status under section 245A of the Immigration and Nationality Act [
"(C) permanent residence status under section 202 of the Immigration Reform and Control Act of 1986 [
"(c)
"(d)
"(e)
"(1) the alien has been convicted of a felony or 3 or more misdemeanors in the United States,
"(2) the alien is described in section 208(b)(2)(A) of the Immigration and Nationality Act [
"(3) [the alien] has committed an act of juvenile delinquency which if committed by an adult would be classified as—
"(A) a felony crime of violence that has an element the use or attempted use of physical force against another individual, or
"(B) a felony offense that by its nature involves a substantial risk that physical force against another individual may be used in the course of committing the offense.
"(f)
"(g)
[Section 383(b) of div. C of
[Section 206(b) of
Use of Capital Assets by Immigration and Naturalization Service
Adjustment to Lawful Resident Status of Certain Nationals of Countries for Which Extended Voluntary Departure Has Been Made Available
"(a)
"(1) applies for such adjustment within two years after the date of the enactment of this Act [Dec. 22, 1987];
"(2) establishes that (A) the alien entered the United States before July 21, 1984, and (B) has resided continuously in the United States since such date and through the date of the enactment of this Act;
"(3) establishes continuous physical presence in the United States (other than brief, casual, and innocent absences) since the date of the enactment of this Act;
"(4) in the case of an alien who entered the United States as a nonimmigrant before July 21, 1984, establishes that (A) the alien's period of authorized stay as a nonimmigrant expired not later than six months after such date through the passage of time or (B) the alien applied for asylum before July 21, 1984; and
"(5) meets the requirements of section 245A(a)(4) of the Immigration and Nationality Act (
The Attorney General shall provide for the acceptance and processing of applications under this subsection by not later than 90 days after the date of the enactment of this Act.
"(b)
Similar provisions were contained in
Procedures for Property Acquisition or Leasing
Section 201(c)(1) of
Use of Retired Federal Employees
Section 201(c)(2) of
Cuban-Haitian Adjustment
Section 202 of
State Legalization Impact-Assistance Grants
Section 204 of
Application of Certain State Assistance Provisions
Section 303(c) of
Reports on Legalization Program
Section 404 of
"(a)
"(b)
"(1) geographical origins and manner of entry of these aliens into the United States,
"(2) their demographic characteristics, and
"(3) a general profile and characteristics.
"(c)
"(1) the impact of the program on State and local governments and on public health and medical needs of individuals in the different regions of the United States,
"(2) the patterns of employment of the legalized population, and
"(3) the participation of legalized aliens in social service programs."
[Functions of President under section 404 of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "(
§1255b. Adjustment of status of certain nonimmigrants to that of persons admitted for permanent residence
Notwithstanding any other provision of law—
(a) Application
Any alien admitted to the United States as a nonimmigrant under the provisions of either section 101(a)(15)(A)(i) or (ii) or 101(a)(15)(G)(i) or (ii) of the Immigration and Nationality Act [
(b) Record of admission
If, after consultation with the Secretary of State, it shall appear to the satisfaction of the Attorney General that the alien has shown compelling reasons demonstrating both that the alien is unable to return to the country represented by the government which accredited the alien or the member of the alien's immediate family and that adjustment of the alien's status to that of an alien lawfully admitted for permanent residence would be in the national interest, that the alien is a person of good moral character, that he is admissible for permanent residence under the Immigration and Nationality Act [
(c) Report to the Congress; resolution not favoring adjustment of status; reduction of quota
A complete and detailed statement of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such adjustment of status. Such reports shall be submitted on the first day of each calendar month in which Congress is in session. The Secretary of State shall, if the alien was classifiable as a quota immigrant at the time of his entry, reduce by one the quota of the quota area to which the alien is chargeable under section 202 of the Immigration and Nationality Act [
(d) Limitations
The number of aliens who may be granted the status of aliens lawfully admitted for permanent residence in any fiscal year, pursuant to this section, shall not exceed fifty.
(
References in Text
The Immigration and Nationality Act, referred to in subsec. (b), is act June 27, 1952, ch. 477,
Codification
Section was not enacted as a part of the Immigration and Nationality Act which comprises this chapter.
Amendments
1996—Subsec. (c).
1994—Subsec. (c).
1988—Subsec. (b).
1981—Subsec. (b).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Definitions; Applicability of Section 1101(a) and (b) of This Title
The definitions in subsecs. (a) and (b) of
§1256. Rescission of adjustment of status; effect upon naturalized citizen
(a) If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of
(b) Any person who has become a naturalized citizen of the United States upon the basis of a record of a lawful admission for permanent residence, created as a result of an adjustment of status for which such person was not in fact eligible, and which is subsequently rescinded under subsection (a) of this section, shall be subject to the provisions of
(June 27, 1952, ch. 477, title II, ch. 5, §246,
Amendments
1996—Subsec. (a).
1994—Subsec. (a).
Effective Date of 1996 Amendment
Amendment by section 308(e)(1)(H) of
Section 378(b) of div. C of
Effective Date of 1994 Amendment
Section 219(m) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
§1257. Adjustment of status of certain resident aliens to nonimmigrant status; exceptions
(a) The status of an alien lawfully admitted for permanent residence shall be adjusted by the Attorney General, under such regulations as he may prescribe, to that of a nonimmigrant under paragraph (15)(A), (E), or (G) of
(b) The adjustment of status required by subsection (a) of this section shall not be applicable in the case of any alien who requests that he be permitted to retain his status as an immigrant and who, in such form as the Attorney General may require, executes and files with the Attorney General a written waiver of all rights, privileges, exemptions, and immunities under any law or any executive order which would otherwise accrue to him because of the acquisition of an occupational status entitling him to a nonimmigrant status under paragraph (15)(A), (E), or (G) of
(June 27, 1952, ch. 477, title II, ch. 5, §247,
Amendments
1996—Subsec. (a).
Effective Date of 1996 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1258. Change of nonimmigrant classification
The Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under
(1) an alien classified as a nonimmigrant under subparagraph (C), (D), (K), or (S) of
(2) an alien classified as a nonimmigrant under subparagraph (J) of
(3) an alien (other than an alien described in paragraph (2)) classified as a nonimmigrant under subparagraph (J) of
(4) an alien admitted as a nonimmigrant visitor without a visa under
(June 27, 1952, ch. 477, title II, ch. 5, §248,
Amendments
1996—
Par. (1).
1994—Par. (1).
1986—Par. (4).
1981—
1961—
Effective Date of 1996 Amendment
Amendment by section 301(b)(2) of
Amendment by section 671(a)(2) of
Effective Date of 1981 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1259. Record of admission for permanent residence in the case of certain aliens who entered the United States prior to January 1, 1972
A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissible under
(a) entered the United States prior to January 1, 1972;
(b) has had his residence in the United States continuously since such entry;
(c) is a person of good moral character; and
(d) is not ineligible to citizenship and is not deportable under
(June 27, 1952, ch. 477, title II, ch. 5, §249,
Amendments
1996—Par. (d).
1990—
1988—
1986—
1965—
1958—
Effective Date of 1996 Amendments
Amendment by
Amendment by
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Applicability of Numerical Limitations
Section 203(c) of
Section Referred to in Other Sections
This section is referred to in
§1260. Removal of aliens falling into distress
The Attorney General may remove from the United States any alien who falls into distress or who needs public aid from causes arising subsequent to his entry, and is desirous of being so removed, to the native country of such alien, or to the country from which he came, or to the country of which he is a citizen or subject, or to any other country to which he wishes to go and which will receive him, at the expense of the appropriation for the enforcement of this chapter. Any alien so removed shall be ineligible to apply for or receive a visa or other documentation for readmission, or to apply for admission to the United States except with the prior approval of the Attorney General.
(June 27, 1952, ch. 477, title II, ch. 5, §250,
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Part VI—Special Provisions Relating to Alien Crewmen
§1281. Alien crewmen
(a) Arrival; submission of list; exceptions
Upon arrival of any vessel or aircraft in the United States from any place outside the United States it shall be the duty of the owner, agent, consignee, master, or commanding officer thereof to deliver to an immigration officer at the port of arrival (1) a complete, true, and correct list containing the names of all aliens employed on such vessel or aircraft, the positions they respectively hold in the crew of the vessel or aircraft, when and where they were respectively shipped or engaged, and those to be paid off or discharged in the port of arrival; or (2) in the discretion of the Attorney General, such a list containing so much of such information, or such additional or supplemental information, as the Attorney General shall by regulations prescribe. In the case of a vessel engaged solely in traffic on the Great Lakes, Saint Lawrence River, and connecting waterways, such lists shall be furnished at such times as the Attorney General may require.
(b) Reports of illegal landings
It shall be the duty of any owner, agent, consignee, master, or commanding officer of any vessel or aircraft to report to an immigration officer, in writing, as soon as discovered, all cases in which any alien crewman has illegally landed in the United States from the vessel or aircraft, together with a description of such alien and any information likely to lead to his apprehension.
(c) Departure; submission of list; exceptions
Before the departure of any vessel or aircraft from any port in the United States, it shall be the duty of the owner, agent, consignee, master, or commanding officer thereof, to deliver to an immigration officer at that port (1) a list containing the names of all alien employees who were not employed thereon at the time of the arrival at that port but who will leave such port thereon at the time of the departure of such vessel or aircraft and the names of those, if any, who have been paid off or discharged, and of those, if any, who have deserted or landed at that port, or (2) in the discretion of the Attorney General, such a list containing so much of such information, or such additional or supplemental information, as the Attorney General shall by regulations prescribe. In the case of a vessel engaged solely in traffic on the Great Lakes, Saint Lawrence River, and connecting waterways, such lists shall be furnished at such times as the Attorney General may require.
(d) Violations
In case any owner, agent, consignee, master, or commanding officer shall fail to deliver complete, true, and correct lists or reports of aliens, or to report cases of desertion or landing, as required by subsections (a), (b), and (c) of this section, such owner, agent, consignee, master, or commanding officer, shall, if required by the Attorney General, pay to the Commissioner the sum of $200 for each alien concerning whom such lists are not delivered or such reports are not made as required in the preceding subsections. In the case that any owner, agent, consignee, master, or commanding officer of a vessel shall secure services of an alien crewman described in
(e) Regulations
The Attorney General is authorized to prescribe by regulations the circumstances under which a vessel or aircraft shall be deemed to be arriving in, or departing from the United States or any port thereof within the meaning of any provision of this part.
(June 27, 1952, ch. 477, title II, ch. 6, §251,
Amendments
1991—Subsec. (d).
1990—Subsec. (d).
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Inapplicability of Amendment by Pub. L. 101–649
Amendment by section 203(b) of
Section Referred to in Other Sections
This section is referred to in
§1282. Conditional permits to land temporarily
(a) Period of time
No alien crewman shall be permitted to land temporarily in the United States except as provided in this section and
(1) the period of time (not exceeding twenty-nine days) during which the vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived; or
(2) twenty-nine days, if the immigration officer is satisfied that the crewman intends to depart, within the period for which he is permitted to land, on a vessel or aircraft other than the one on which he arrived.
(b) Revocation; expenses of detention
Pursuant to regulations prescribed by the Attorney General, any immigration officer may, in his discretion, if he determines that an alien is not a bona fide crewman, or does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a)(1) of this section, take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel or aircraft, if practicable, and such crewman shall be removed from the United States at the expense of the transportation line which brought him to the United States. Until such alien is so removed, any expenses of his detention shall be borne by such transportation company. Nothing in this section shall be construed to require the procedure prescribed in
(c) Penalties
Any alien crewman who willfully remains in the United States in excess of the number of days allowed in any conditional permit issued under subsection (a) of this section shall be fined under title 18 or imprisoned not more than 6 months, or both.
(June 27, 1952, ch. 477, title II, ch. 6, §252,
Amendments
1996—Subsec. (b).
1991—Subsec. (c).
1990—Subsec. (c).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1283. Hospital treatment of alien crewmen afflicted with certain diseases
An alien crewman, including an alien crewman ineligible for a conditional permit to land under
(June 27, 1952, ch. 477, title II, ch. 6, §253,
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1284. Control of alien crewmen
(a) Penalties for failure
The owner, agent, consignee, charterer, master, or commanding officer of any vessel or aircraft arriving in the United States from any place outside thereof who fails (1) to detain on board the vessel, or in the case of an aircraft to detain at a place specified by an immigration officer at the expense of the airline, any alien crewman employed thereon until an immigration officer has completely inspected such alien crewman, including a physical examination by the medical examiner, or (2) to detain any alien crewman on board the vessel, or in the case of an aircraft at a place specified by an immigration officer at the expense of the airline, after such inspection unless a conditional permit to land temporarily has been granted such alien crewman under
(b) Prima facie evidence against transportation line
Except as may be otherwise prescribed by regulations issued by the Attorney General, proof that an alien crewman did not appear upon the outgoing manifest of the vessel or aircraft on which he arrived in the United States from any place outside thereof, or that he was reported by the master or commanding officer of such vessel or aircraft as a deserter, shall be prima facie evidence of a failure to detain or remove such alien crewman.
(c) Removal on other than arriving vessel or aircraft; expenses
If the Attorney General finds that removal of an alien crewman under this section on the vessel or aircraft on which he arrived is impracticable or impossible, or would cause undue hardship to such alien crewman, he may cause the alien crewman to be removed from the port of arrival or any other port on another vessel or aircraft of the same transportation line, unless the Attorney General finds this to be impracticable. All expenses incurred in connection with such removal, including expenses incurred in transferring an alien crewman from one place in the United States to another under such conditions and safeguards as the Attorney General shall impose, shall be paid by the owner or owners of the vessel or aircraft on which the alien arrived in the United States. The vessel or aircraft on which the alien arrived shall not be granted clearance until such expenses have been paid or their payment guaranteed to the satisfaction of the Attorney General. An alien crewman who is transferred within the United States in accordance with this subsection shall not be regarded as having been landed in the United States.
(June 27, 1952, ch. 477, title II, ch. 6, §254,
Amendments
1996—
1991—Subsec. (a).
1990—Subsec. (a).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1285. Employment on passenger vessels of aliens afflicted with certain disabilities
It shall be unlawful for any vessel or aircraft carrying passengers between a port of the United States and a port outside thereof to have employed on board upon arrival in the United States any alien afflicted with feeble-mindedness, insanity, epilepsy, tuberculosis in any form, leprosy, or any dangerous contagious disease. If it appears to the satisfaction of the Attorney General, from an examination made by a medical officer of the United States Public Health Service, and is so certified by such officer, that any such alien was so afflicted at the time he was shipped or engaged and taken on board such vessel or aircraft and that the existence of such affliction might have been detected by means of a competent medical examination at such time, the owner, commanding officer, agent, consignee, or master thereof shall pay for each alien so afflicted to the Commissioner the sum of $1,000. No vessel or aircraft shall be granted clearance pending the determination of the question of the liability to the payment of such sums, or while such sums remain unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of an amount sufficient to cover such sums or of a bond approved by the Commissioner with sufficient surety to secure the payment thereof. Any such fine may, in the discretion of the Attorney General, be mitigated or remitted.
(June 27, 1952, ch. 477, title II, ch. 6, §255,
Amendments
1990—
Effective Date of 1990 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1286. Discharge of alien crewmen; penalties
It shall be unlawful for any person, including the owner, agent, consignee, charterer, master, or commanding officer of any vessel or aircraft, to pay off or discharge any alien crewman, except an alien lawfully admitted for permanent residence, employed on board a vessel or aircraft arriving in the United States without first having obtained the consent of the Attorney General. If it shall appear to the satisfaction of the Attorney General that any alien crewman has been paid off or discharged in the United States in violation of the provisions of this section, such owner, agent, consignee, charterer, master, commanding officer, or other person, shall pay to the Commissioner the sum of $3,000 for each such violation. No vessel or aircraft shall be granted clearance pending the determination of the question of the liability to the payment of such sums, or while such sums remain unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of an amount sufficient to cover such sums, or of a bond approved by the Commissioner with sufficient surety to secure the payment thereof. Such fine may, in the discretion of the Attorney General, be mitigated to not less than $1,500 for each violation, upon such terms as he shall think proper.
(June 27, 1952, ch. 477, title II, ch. 6, §256,
Amendments
1990—
Effective Date of 1990 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1287. Alien crewmen brought into the United States with intent to evade immigration laws; penalties
Any person, including the owner, agent, consignee, master, or commanding officer of any vessel or aircraft arriving in the United States from any place outside thereof, who shall knowingly sign on the vessel's articles, or bring to the United States as one of the crew of such vessel or aircraft, any alien, with intent to permit or assist such alien to enter or land in the United States in violation of law, or who shall falsely and knowingly represent to a consular officer at the time of application for visa, or to the immigration officer at the port of arrival in the United States, that such alien is a bona fide member of the crew employed in any capacity regularly required for normal operation and services aboard such vessel or aircraft, shall be liable to a penalty not exceeding $10,000 for each such violation, for which sum such vessel or aircraft shall be liable and may be seized and proceeded against by way of libel in any district court of the United States having jurisdiction of the offense.
(June 27, 1952, ch. 477, title II, ch. 6, §257,
Amendments
1990—
Effective Date of 1990 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1288. Limitations on performance of longshore work by alien crewmen
(a) In general
For purposes of
(b) "Longshore work" defined
(1) In general
In this section, except as provided in paragraph (2), the term "longshore work" means any activity relating to the loading or unloading of cargo, the operation of cargo-related equipment (whether or not integral to the vessel), and the handling of mooring lines on the dock when the vessel is made fast or let go, in the United States or the coastal waters thereof.
(2) Exception for safety and environmental protection
The term "longshore work" does not include the loading or unloading of any cargo for which the Secretary of Transportation has, under the authority contained in
(A) the handling or stowage of such cargo,
(B) the manning of vessels and the duties, qualifications, and training of the officers and crew of vessels carrying such cargo, and
(C) the reduction or elimination of discharge during ballasting, tank cleaning, handling of such cargo.
(3) Construction
Nothing in this section shall be construed as broadening, limiting, or otherwise modifying the meaning or scope of longshore work for purposes of any other law, collective bargaining agreement, or international agreement.
(c) Prevailing practice exception
(1) Subsection (a) of this section shall not apply to a particular activity of longshore work in and about a local port if—
(A)(i) there is in effect in the local port one or more collective bargaining agreements each covering at least 30 percent of the number of individuals employed in performing longshore work and (ii) each such agreement (covering such percentage of longshore workers) permits the activity to be performed by alien crewmen under the terms of such agreement; or
(B) there is no collective bargaining agreement in effect in the local port covering at least 30 percent of the number of individuals employed in performing longshore work, and an employer of alien crewmen (or the employer's designated agent or representative) has filed with the Secretary of Labor at least 14 days before the date of performance of the activity (or later, if necessary due to an unanticipated emergency, but not later than the date of performance of the activity) an attestation setting forth facts and evidence to show that—
(i) the performance of the activity by alien crewmen is permitted under the prevailing practice of the particular port as of the date of filing of the attestation and that the use of alien crewmen for such activity—
(I) is not during a strike or lockout in the course of a labor dispute, and
(II) is not intended or designed to influence an election of a bargaining representative for workers in the local port; and
(ii) notice of the attestation has been provided by the owner, agent, consignee, master, or commanding officer to the bargaining representative of longshore workers in the local port, or, where there is no such bargaining representative, notice of the attestation has been provided to longshore workers employed at the local port.
In applying subparagraph (B) in the case of a particular activity of longshore work consisting of the use of an automated self-unloading conveyor belt or vacuum-actuated system on a vessel, the attestation shall be required to be filed only if the Secretary of Labor finds, based on a preponderance of the evidence which may be submitted by any interested party, that the performance of such particular activity is not described in clause (i) of such subparagraph.
(2) Subject to paragraph (4), an attestation under paragraph (1) shall—
(A) expire at the end of the 1-year period beginning on the date of its filing with the Secretary of Labor, and
(B) apply to aliens arriving in the United States during such 1-year period if the owner, agent, consignee, master, or commanding officer states in each list under
(3) An owner, agent, consignee, master, or commanding officer may meet the requirements under this subsection with respect to more than one alien crewman in a single list.
(4)(A) The Secretary of Labor shall compile and make available for public examination in a timely manner in Washington, D.C., a list identifying owners, agents, consignees, masters, or commanding officers which have filed lists for nonimmigrants described in
(B)(i) The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting an entity's failure to meet conditions attested to, an entity's misrepresentation of a material fact in an attestation, or, in the case described in the last sentence of paragraph (1), whether the performance of the particular activity is or is not described in paragraph (1)(B)(i).
(ii) Complaints may be filed by any aggrieved person or organization (including bargaining representatives, associations deemed appropriate by the Secretary, and other aggrieved parties as determined under regulations of the Secretary).
(iii) The Secretary shall promptly conduct an investigation under this subparagraph if there is reasonable cause to believe that an entity fails to meet conditions attested to, an entity has misrepresented a material fact in the attestation, or, in the case described in the last sentence of paragraph (1), the performance of the particular activity is not described in paragraph (1)(B)(i).
(C)(i) If the Secretary determines that reasonable cause exists to conduct an investigation with respect to an attestation, a complaining party may request that the activities attested to by the employer cease during the hearing process described in subparagraph (D). If such a request is made, the attesting employer shall be issued notice of such request and shall respond within 14 days to the notice. If the Secretary makes an initial determination that the complaining party's position is supported by a preponderance of the evidence submitted, the Secretary shall require immediately that the employer cease and desist from such activities until completion of the process described in subparagraph (D).
(ii) If the Secretary determines that reasonable cause exists to conduct an investigation with respect to a matter under the last sentence of paragraph (1), a complaining party may request that the activities of the employer cease during the hearing process described in subparagraph (D) unless the employer files with the Secretary of Labor an attestation under paragraph (1). If such a request is made, the employer shall be issued notice of such request and shall respond within 14 days to the notice. If the Secretary makes an initial determination that the complaining party's position is supported by a preponderance of the evidence submitted, the Secretary shall require immediately that the employer cease and desist from such activities until completion of the process described in subparagraph (D) unless the employer files with the Secretary of Labor an attestation under paragraph (1).
(D) Under the process established under subparagraph (B), the Secretary shall provide, within 180 days after the date a complaint is filed (or later for good cause shown), for a determination as to whether or not a basis exists to make a finding described in subparagraph (E). The Secretary shall provide notice of such determination to the interested parties and an opportunity for a hearing on the complaint within 60 days of the date of the determination.
(E)(i) If the Secretary of Labor finds, after notice and opportunity for a hearing, that an entity has failed to meet a condition attested to or has made a misrepresentation of material fact in the attestation, the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $5,000 for each alien crewman performing unauthorized longshore work) as the Secretary determines to be appropriate. Upon receipt of such notice, the Attorney General shall not permit the vessels owned or chartered by such entity to enter any port of the United States during a period of up to 1 year.
(ii) If the Secretary of Labor finds, after notice and opportunity for a hearing, that, in the case described in the last sentence of paragraph (1), the performance of the particular activity is not described in subparagraph (B)(i), the Secretary shall notify the Attorney General of such finding and, thereafter, the attestation described in paragraph (1) shall be required of the employer for the performance of the particular activity.
(F) A finding by the Secretary of Labor under this paragraph that the performance of an activity by alien crewmen is not permitted under the prevailing practice of a local port shall preclude for one year the filing of a subsequent attestation concerning such activity in the port under paragraph (1).
(5) Except as provided in paragraph (5) of subsection (d) of this section, this subsection shall not apply to longshore work performed in the State of Alaska.
(d) State of Alaska exception
(1) Subsection (a) of this section shall not apply to a particular activity of longshore work at a particular location in the State of Alaska if an employer of alien crewmen has filed an attestation with the Secretary of Labor at least 30 days before the date of the first performance of the activity (or anytime up to 24 hours before the first performance of the activity, upon a showing that the employer could not have reasonably anticipated the need to file an attestation for that location at that time) setting forth facts and evidence to show that—
(A) the employer will make a bona fide request for United States longshore workers who are qualified and available in sufficient numbers to perform the activity at the particular time and location from the parties to whom notice has been provided under clauses (ii) and (iii) of subparagraph (D), except that—
(i) wherever two or more contract stevedoring companies have signed a joint collective bargaining agreement with a single labor organization described in subparagraph (D)(i), the employer may request longshore workers from only one of such contract stevedoring companies, and
(ii) a request for longshore workers to an operator of a private dock may be made only for longshore work to be performed at that dock and only if the operator meets the requirements of
(B) the employer will employ all those United States longshore workers made available in response to the request made pursuant to subparagraph (A) who are qualified and available in sufficient numbers and who are needed to perform the longshore activity at the particular time and location;
(C) the use of alien crewmembers for such activity is not intended or designed to influence an election of a bargaining representative for workers in the State of Alaska; and
(D) notice of the attestation has been provided by the employer to—
(i) labor organizations which have been recognized as exclusive bargaining representatives of United States longshore workers within the meaning of the National Labor Relations Act [
(ii) contract stevedoring companies which employ or intend to employ United States longshore workers at that location, and
(iii) operators of private docks at which the employer will use longshore workers.
(2)(A) An employer filing an attestation under paragraph (1) who seeks to use alien crewmen to perform longshore work shall be responsible while at 1 the attestation is valid to make bona fide requests for United States longshore workers under paragraph (1)(A) and to employ United States longshore workers, as provided in paragraph (1)(B), before using alien crewmen to perform the activity or activities specified in the attestation, except that an employer shall not be required to request longshore workers from a party if that party has notified the employer in writing that it does not intend to make available United States longshore workers to the location at which the longshore work is to be performed.
(B) If a party that has provided such notice subsequently notifies the employer in writing that it is prepared to make available United States longshore workers who are qualified and available in sufficient numbers to perform the longshore activity to the location at which the longshore work is to be performed, then the employer's obligations to that party under subparagraphs (A) and (B) of paragraph (1) shall begin 60 days following the issuance of such notice.
(3)(A) In no case shall an employer filing an attestation be required—
(i) to hire less than a full work unit of United States longshore workers needed to perform the longshore activity;
(ii) to provide overnight accommodations for the longshore workers while employed; or
(iii) to provide transportation to the place of work, except where—
(I) surface transportation is available;
(II) such transportation may be safely accomplished;
(III) travel time to the vessel does not exceed one-half hour each way; and
(IV) travel distance to the vessel from the point of embarkation does not exceed 5 miles.
(B) In the cases of Wide Bay, Alaska, and Klawock/Craig, Alaska, the travel times and travel distances specified in subclauses (III) and (IV) of subparagraph (A)(iii) shall be extended to 45 minutes and 7½ miles, respectively, unless the party responding to the request for longshore workers agrees to the lesser time and distance limitations specified in those subclauses.
(4) Subject to subparagraphs (A) through (D) of subsection (c)(4) of this section, attestations filed under paragraph (1) of this subsection shall—
(A) expire at the end of the 1-year period beginning on the date the employer anticipates the longshore work to begin, as specified in the attestation filed with the Secretary of Labor, and
(B) apply to aliens arriving in the United States during such 1-year period if the owner, agent, consignee, master, or commanding officer states in each list under
(5)(A) Except as otherwise provided by subparagraph (B), subsection (c)(3) of this section and subparagraphs (A) through (E) of subsection (c)(4) of this section shall apply to attestations filed under this subsection.
(B) The use of alien crewmen to perform longshore work in Alaska consisting of the use of an automated self-unloading conveyor belt or vacuum-actuated system on a vessel shall be governed by the provisions of subsection (c) of this section.
(6) For purposes of this subsection—
(A) the term "contract stevedoring companies" means those stevedoring companies licensed to do business in the State of Alaska that meet the requirements of
(B) the term "employer" includes any agent or representative designated by the employer; and
(C) the terms "qualified" and "available in sufficient numbers" shall be defined by reference to industry standards in the State of Alaska, including safety considerations.
(e) Reciprocity exception
(1) In general
Subject to the determination of the Secretary of State pursuant to paragraph (2), the Attorney General shall permit an alien crewman to perform an activity constituting longshore work if—
(A) the vessel is registered in a country that by law, regulation, or in practice does not prohibit such activity by crewmembers aboard United States vessels; and
(B) nationals of a country (or countries) which by law, regulation, or in practice does not prohibit such activity by crewmembers aboard United States vessels hold a majority of the ownership interest in the vessel.
(2) Establishment of list
The Secretary of State shall, in accordance with
(3) "In practice" defined
For purposes of this subsection, the term "in practice" refers to an activity normally performed in such country during the one-year period preceding the arrival of such vessel into the United States or coastal waters thereof.
(June 27, 1952, ch. 477, title II, ch. 6, §258, as added
References in Text
Section 4106 of the Oil Pollution Act of 1990, referred to in subsec. (b)(2), is section 4106 of
The National Labor Relations Act, referred to in subsec. (d)(1)(D)(i), is act July 5, 1935, ch. 372,
Amendments
1996—Subsec. (b)(2).
1994—Subsecs. (a), (c)(4)(A), (5).
Subsec. (d).
Subsec. (d)(3)(B).
Subsec. (e).
1993—Subsec. (a).
Subsec. (c)(4)(A).
Subsec. (c)(5).
Subsecs. (d), (e).
1991—Subsec. (c)(2)(B).
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by
Effective Date
Section applicable to services performed on or after 180 days after Nov. 29, 1990, see section 203(d) of
Regulations
Section 323(c) of
"(1) The Secretary of Labor shall prescribe such regulations as may be necessary to carry out this section [amending this section].
"(2) Attestations filed pursuant to section 258(c) (
Similar provisions were contained in
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Inapplicability of Amendment by Pub. L. 101–649
Section 203(a)(2) of
Section Referred to in Other Sections
This section is referred to in
1 So in original. The word "at" probably should not appear.
Part VII—Registration of Aliens
§1301. Alien seeking entry; contents
No visa shall be issued to any alien seeking to enter the United States until such alien has been registered in accordance with
(June 27, 1952, ch. 477, title II, ch. 7, §261,
Amendments
1988—
1986—
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1302. Registration of aliens
(a) It shall be the duty of every alien now or hereafter in the United States, who (1) is fourteen years of age or older, (2) has not been registered and fingerprinted under
(b) It shall be the duty of every parent or legal guardian of any alien now or hereafter in the United States, who (1) is less than fourteen years of age, (2) has not been registered under
(c) The Attorney General may, in his discretion and on the basis of reciprocity pursuant to such regulations as he may prescribe, waive the requirement of fingerprinting specified in subsections (a) and (b) of this section in the case of any nonimmigrant.
(June 27, 1952, ch. 477, title II, ch. 7, §262,
References in Text
The Alien Registration Act, 1940, referred to in subsecs. (a) and (b), is act June 28, 1940, ch. 439,
Amendments
1994—Subsec. (c).
1988—
1986—
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by
Effective Date
Section effective 180 days after June 27, 1952, see section 407 of act June 27, 1952, set out as a note under
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1303. Registration of special groups
(a) Notwithstanding the provisions of
(b) The provisions of
(June 27, 1952, ch. 477, title II, ch. 7, §263,
Amendments
1996—Subsec. (a)(4).
Subsec. (a)(5), (6).
Effective Date of 1996 Amendment
Amendment by section 308(e)(1)(J) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
§1304. Forms for registration and fingerprinting
(a) Preparation; contents
The Attorney General and the Secretary of State jointly are authorized and directed to prepare forms for the registration of aliens under
(b) Confidential nature
All registration and fingerprint records made under the provisions of this subchapter shall be confidential, and shall be made available only (1) pursuant to
(c) Information under oath
Every person required to apply for the registration of himself or another under this subchapter shall submit under oath the information required for such registration. Any person authorized under regulations issued by the Attorney General to register aliens under this subchapter shall be authorized to administer oaths for such purpose.
(d) Certificate of alien registration or alien receipt card
Every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this chapter shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations issued by the Attorney General.
(e) Personal possession of registration or receipt card; penalties
Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
(f) Alien's social security account number
Notwithstanding any other provision of law, the Attorney General is authorized to require any alien to provide the alien's social security account number for purposes of inclusion in any record of the alien maintained by the Attorney General or the Service.
(June 27, 1952, ch. 477, title II, ch. 7, §264,
References in Text
The Alien Registration Act, 1940, referred to in subsec. (d), is act June 28, 1940, ch. 439,
Amendments
1996—Subsec. (f).
1990—Subsec. (b).
1988—Subsec. (a).
1986—Subsec. (a).
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1305. Notices of change of address
(a) Notification of change
Each alien required to be registered under this subchapter who is within the United States shall notify the Attorney General in writing of each change of address and new address within ten days from the date of such change and furnish with such notice such additional information as the Attorney General may require by regulation.
(b) Current address of natives of any one or more foreign states
The Attorney General may in his discretion, upon ten days notice, require the natives of any one or more foreign states, or any class or group thereof, who are within the United States and who are required to be registered under this subchapter, to notify the Attorney General of their current addresses and furnish such additional information as the Attorney General may require.
(c) Notice to parent or legal guardian
In the case of an alien for whom a parent or legal guardian is required to apply for registration, the notice required by this section shall be given to such parent or legal guardian.
(June 27, 1952, ch. 477, title II, ch. 7, §265,
Amendments
1988—
1981—
Effective Date of 1981 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1306. Penalties
(a) Willful failure to register
Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.
(b) Failure to notify change of address
Any alien or any parent or legal guardian in the United States of any alien who fails to give written notice to the Attorney General, as required by
(c) Fraudulent statements
Any alien or any parent or legal guardian of any alien, who files an application for registration containing statements known by him to be false, or who procures or attempts to procure registration of himself or another person through fraud, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000, or be imprisoned not more than six months, or both; and any alien so convicted shall, upon the warrant of the Attorney General, be taken into custody and be removed in the manner provided in part IV of this subchapter.
(d) Counterfeiting
Any person who with unlawful intent photographs, prints, or in any other manner makes, or executes, any engraving, photograph, print, or impression in the likeness of any certificate of alien registration or an alien registration receipt card or any colorable imitation thereof, except when and as authorized under such rules and regulations as may be prescribed by the Attorney General, shall upon conviction be fined not to exceed $5,000 or be imprisoned not more than five years, or both.
(June 27, 1952, ch. 477, title II, ch. 7, §266,
Amendments
1996—Subsecs. (b), (c).
Effective Date of 1996 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
Part VIII—General Penalty Provisions
§1321. Prevention of unauthorized landing of aliens
(a) Failure to report; penalties
It shall be the duty of every person, including the owners, masters, officers, and agents of vessels, aircraft, transportation lines, or international bridges or toll roads, other than transportation lines which may enter into a contract as provided in
(b) Prima facie evidence
Proof that the alien failed to present himself at the time and place designated by the immigration officers shall be prima facie evidence that such alien has landed in the United States at a time or place other than as designated by the immigration officers.
(c) Liability of owners and operators of international bridges and toll roads
(1) Any owner or operator of a railroad line, international bridge, or toll road who establishes to the satisfaction of the Attorney General that the person has acted diligently and reasonably to fulfill the duty imposed by subsection (a) of this section shall not be liable for the penalty described in such subsection, notwithstanding the failure of the person to prevent the unauthorized landing of any alien.
(2)(A) At the request of any person described in paragraph (1), the Attorney General shall inspect any facility established, or any method utilized, at a point of entry into the United States by such person for the purpose of complying with subsection (a) of this section. The Attorney General shall approve any such facility or method (for such period of time as the Attorney General may prescribe) which the Attorney General determines is satisfactory for such purpose.
(B) Proof that any person described in paragraph (1) has diligently maintained any facility, or utilized any method, which has been approved by the Attorney General under subparagraph (A) (within the period for which the approval is effective) shall be prima facie evidence that such person acted diligently and reasonably to fulfill the duty imposed by subsection (a) of this section (within the meaning of paragraph (1) of this subsection).
(June 27, 1952, ch. 477, title II, ch. 8, §271,
Amendments
1996—Subsec. (a).
1990—Subsec. (a).
1986—Subsec. (c).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1322. Bringing in aliens subject to denial of admission on a health-related ground; persons liable; clearance papers; exceptions; "person" defined
(a) Any person who shall bring to the United States an alien (other than an alien crewman) who is inadmissible under
(b) No vessel or aircraft shall be granted clearance papers pending determination of the question of liability to the payment of any fine under this section, or while the fines remain unpaid, nor shall such fines be remitted or refunded; but clearance may be granted prior to the determination of such question upon the deposit of a sum sufficient to cover such fines or of a bond with sufficient surety to secure the payment thereof, approved by the Commissioner.
(c) Nothing contained in this section shall be construed to subject transportation companies to a fine for bringing to ports of entry in the United States aliens who are entitled by law to exemption from the provisions of
(d) As used in this section, the term "person" means the owner, master, agent, commanding officer, charterer, or consignee of any vessel or aircraft.
(June 27, 1952, ch. 477, title II, ch. 8, §272,
Amendments
1996—
Subsec. (a).
Subsec. (c).
1994—Subsec. (a).
1991—Subsec. (a).
1990—
Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsecs. (d), (e).
1965—Subsec. (a).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1991 Amendment
Section 307(l) of
Effective Date of 1990 Amendment
Amendment by section 543(a)(9) of
Amendment by section 603(a)(15) of
Effective Date of 1965 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1323. Unlawful bringing of aliens into United States
(a) Persons liable
(1) It shall be unlawful for any person, including any transportation company, or the owner, master, commanding officer, agent, charterer, or consignee of any vessel or aircraft, to bring to the United States from any place outside thereof (other than from foreign contiguous territory) any alien who does not have a valid passport and an unexpired visa, if a visa was required under this chapter or regulations issued thereunder.
(2) It is unlawful for an owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel or aircraft who is bringing an alien (except an alien crewmember) to the United States to take any consideration to be kept or returned contingent on whether an alien is admitted to, or ordered removed from, the United States.
(b) Evidence
If it appears to the satisfaction of the Attorney General that any alien has been so brought, such person, or transportation company, or the master, commanding officer, agent, owner, charterer, or consignee of any such vessel or aircraft, shall pay to the Commissioner a fine of $3,000 for each alien so brought and, except in the case of any such alien who is admitted, or permitted to land temporarily, in addition, an amount equal to that paid by such alien for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, such latter fine to be delivered by the Commissioner to the alien on whose account the assessment is made. No vessel or aircraft shall be granted clearance pending the determination of the liability to the payment of such fine or while such fine remains unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of an amount sufficient to cover such fine, or of a bond with sufficient surety to secure the payment thereof approved by the Commissioner.
(c) Remission or refund
Except as provided in subsection (e) of this section, such fine shall not be remitted or refunded, unless it appears to the satisfaction of the Attorney General that such person, and the owner, master, commanding officer, agent, charterer, and consignee of the vessel or aircraft, prior to the departure of the vessel or aircraft from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, that the individual transported was an alien and that a valid passport or visa was required.
(d) Repealed. Pub. L. 104–208, div. C, title III, §308(e)(13), Sept. 30, 1996, 110 Stat. 3009–620
(e) Reduction, refund, or waiver
A fine under this section may be reduced, refunded, or waived under such regulations as the Attorney General shall prescribe in cases in which—
(1) the carrier demonstrates that it had screened all passengers on the vessel or aircraft in accordance with procedures prescribed by the Attorney General, or
(2) circumstances exist that the Attorney General determines would justify such reduction, refund, or waiver.
(June 27, 1952, ch. 477, title II, ch. 8, §273,
Amendments
1996—Subsec. (a).
Subsec. (b).
Subsec. (d).
1994—Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1991—Subsec. (b).
1990—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Effective Date of 1996 Amendment
Amendment by section 308(c)(3), (e)(13) of
Amendment by section 371(b)(8) of
Amendment by section 671(b)(6), (7) of
Effective Date of 1994 Amendment
Section 209(b) of
Amendment by section 219(p) of
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by section 543(a)(10) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1324. Bringing in and harboring certain aliens
(a) Criminal penalties
(1)(A) Any person who—
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, 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, such alien in any place, including any building or any means of transportation;
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(v)(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs—
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;
(iii) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) during and in relation to which the person causes serious bodily injury (as defined in
(iv) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined under title 18, or both.
(2) Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs—
(A) be fined in accordance with title 18 or imprisoned not more than one year, or both; or
(B) in the case of—
(i) an offense committed with the intent or with reason to believe that the alien unlawfully brought into the United States will commit an offense against the United States or any State punishable by imprisonment for more than 1 year,
(ii) an offense done for the purpose of commercial advantage or private financial gain, or
(iii) an offense in which the alien is not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry,
be fined under title 18 and shall be imprisoned, in the case of a first or second violation of subparagraph (B)(iii), not more than 10 years, in the case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15 years.
(3)(A) Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in subparagraph (B) shall be fined under title 18 or imprisoned for not more than 5 years, or both.
(B) An alien described in this subparagraph is an alien who—
(i) is an unauthorized alien (as defined in
(ii) has been brought into the United States in violation of this subsection.
(b) Seizure and forfeiture
(1) In general
Any conveyance, including any vessel, vehicle, or aircraft, that has been or is being used in the commission of a violation of subsection (a) of this section, the gross proceeds of such violation, and any property traceable to such conveyance or proceeds, shall be seized and subject to forfeiture.
(2) Applicable procedures
Seizures and forfeitures under this subsection shall be governed by the provisions of
(3) Prima facie evidence in determinations of violations
In determining whether a violation of subsection (a) of this section has occurred, any of the following shall be prima facie evidence that an alien involved in the alleged violation had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law:
(A) Records of any judicial or administrative proceeding in which that alien's status was an issue and in which it was determined that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(B) Official records of the Service or of the Department of State showing that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(C) Testimony, by an immigration officer having personal knowledge of the facts concerning that alien's status, that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(c) Authority to arrest
No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.
(d) Admissibility of videotaped witness testimony
Notwithstanding any provision of the Federal Rules of Evidence, the videotaped (or otherwise audiovisually preserved) deposition of a witness to a violation of subsection (a) of this section who has been deported or otherwise expelled from the United States, or is otherwise 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 Federal Rules of Evidence.
(June 27, 1952, ch. 477, title II, ch. 8, §274,
References in Text
The Federal Rules of Evidence, referred to in subsec. (d), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
Amendments
2000—Subsec. (b).
1996—Subsec. (a)(1).
Subsec. (a)(1)(A)(v).
Subsec. (a)(1)(B)(i).
Subsec. (a)(1)(B)(ii).
Subsec. (a)(1)(B)(iii), (iv).
Subsec. (a)(2).
Subsec. (a)(2)(B).
Subsec. (a)(2)(B)(i).
Subsec. (a)(3).
Subsec. (d).
1994—Subsec. (a)(1).
Subsec. (a)(2)(B).
1988—Subsec. (a)(1).
Subsec. (b)(4)(C), (5).
1986—Subsec. (a).
"(1) brings into or lands in the United States, by any means of transportation or otherwise, or attempts, by himself or through another, to bring into or land in the United States, by any means of transportation or otherwise;
"(2) knowing that he is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports, or moves, or attempts to transport or move, within the United States by means of transportation or otherwise, in furtherance of such violation of law;
"(3) willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, in any place, including any building or any means of transportation; or
"(4) willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of—
any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs: Provided, however, That for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring."
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3).
Subsec. (b)(4)(C).
Subsec. (b)(4)(D).
Subsec. (b)(5).
1981—Subsec. (b).
1978—Subsecs. (b), (c).
Effective Date of 2000 Amendment
Effective Date of 1996 Amendment
Section 203(f) of div. C of
Amendment by section 671(a)(1) of
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1324a. Unlawful employment of aliens
(a) Making employment of unauthorized aliens unlawful
(1) In general
It is unlawful for a person or other entity—
(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or
(B)(i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in
(2) Continuing employment
It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.
(3) Defense
A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) of this section with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral.
(4) Use of labor through contract
For purposes of this section, a person or other entity who uses a contract, subcontract, or exchange, entered into, renegotiated, or extended after November 6, 1986, to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).
(5) Use of State employment agency documentation
For purposes of paragraphs (1)(B) and (3), a person or entity shall be deemed to have complied with the requirements of subsection (b) of this section with respect to the hiring of an individual who was referred for such employment by a State employment agency (as defined by the Attorney General), if the person or entity has and retains (for the period and in the manner described in subsection (b)(3) of this section) appropriate documentation of such referral by that agency, which documentation certifies that the agency has complied with the procedures specified in subsection (b) of this section with respect to the individual's referral.
(6) Treatment of documentation for certain employees
(A) In general
For purposes of this section, if—
(i) an individual is a member of a collective-bargaining unit and is employed, under a collective bargaining agreement entered into between one or more employee organizations and an association of two or more employers, by an employer that is a member of such association, and
(ii) within the period specified in subparagraph (B), another employer that is a member of the association (or an agent of such association on behalf of the employer) has complied with the requirements of subsection (b) of this section with respect to the employment of the individual,
the subsequent employer shall be deemed to have complied with the requirements of subsection (b) of this section with respect to the hiring of the employee and shall not be liable for civil penalties described in subsection (e)(5) of this section.
(B) Period
The period described in this subparagraph is 3 years, or, if less, the period of time that the individual is authorized to be employed in the United States.
(C) Liability
(i) In general
If any employer that is a member of an association hires for employment in the United States an individual and relies upon the provisions of subparagraph (A) to comply with the requirements of subsection (b) of this section and the individual is an alien not authorized to work in the United States, then for the purposes of paragraph (1)(A), subject to clause (ii), the employer shall be 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.
(ii) Rebuttal of presumption
The presumption established by clause (i) may be rebutted by the employer only through the presentation of clear and convincing evidence that the employer did not know (and could not reasonably have known) that the individual at the time of hiring or afterward was an alien not authorized to work in the United States.
(iii) Exception
Clause (i) shall not apply in any prosecution under subsection (f)(1) of this section.
(7) Application to Federal Government
For purposes of this section, the term "entity" includes an entity in any branch of the Federal Government.
(b) Employment verification system
The requirements referred to in paragraphs (1)(B) and (3) of subsection (a) of this section are, in the case of a person or other entity hiring, recruiting, or referring an individual for employment in the United States, the requirements specified in the following three paragraphs:
(1) Attestation after examination of documentation
(A) In general
The person or entity must attest, under penalty of perjury and on a form designated or established by the Attorney General by regulation, that it has verified that the individual is not an unauthorized alien by examining—
(i) a document described in subparagraph (B), or
(ii) a document described in subparagraph (C) and a document described in subparagraph (D).
A person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine. If an individual provides a document or combination of documents that reasonably appears on its face to be genuine and that is sufficient to meet the requirements of the first sentence of this paragraph, nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual to produce such another document.
(B) Documents establishing both employment authorization and identity
A document described in this subparagraph is an individual's—
(i) United States passport; 1
(ii) resident alien card, alien registration card, or other document designated by the Attorney General, if the document—
(I) contains a photograph of the individual and such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this subsection,
(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.
(C) Documents evidencing employment authorization
A document described in this subparagraph is an individual's—
(i) social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States); or
(ii) other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section.
(D) Documents establishing identity of individual
A document described in this subparagraph is an individual's—
(i) driver's license or similar document issued for the purpose of identification by a State, if it contains a photograph of the individual or such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this section; or
(ii) in the case of individuals under 16 years of age or in a State which does not provide for issuance of an identification document (other than a driver's license) referred to in clause (i), documentation of personal identity of such other type as the Attorney General finds, by regulation, provides a reliable means of identification.
(E) Authority to prohibit use of certain documents
If the Attorney General finds, by regulation, that any document described in subparagraph (B), (C), or (D) as establishing employment authorization or identity does not reliably establish such authorization 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 subsection.
(2) Individual attestation of employment authorization
The individual must attest, under penalty of perjury on the form designated or established for purposes of paragraph (1), that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this chapter or by the Attorney General to be hired, recruited, or referred for such employment.
(3) Retention of verification form
After completion of such form in accordance with paragraphs (1) and (2), the person or entity must retain the form and make it available for inspection by officers of the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during a period beginning on the date of the hiring, recruiting, or referral of the individual and ending—
(A) in the case of the recruiting or referral for a fee (without hiring) of an individual, three years after the date of the recruiting or referral, and
(B) in the case of the hiring of an individual—
(i) three years after the date of such hiring, or
(ii) one year after the date the individual's employment is terminated,
whichever is later.
(4) Copying of documentation permitted
Notwithstanding any other provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection and may retain the copy, but only (except as otherwise permitted under law) for the purpose of complying with the requirements of this subsection.
(5) Limitation on use of attestation form
A form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and
(6) Good faith compliance
(A) In general
Except as provided in subparagraphs (B) and (C), a person or entity is considered to have complied with a requirement of this subsection notwithstanding a technical or procedural failure to meet such requirement if there was a good faith attempt to comply with the requirement.
(B) Exception if failure to correct after notice
Subparagraph (A) shall not apply 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 a period of not less than 10 business days (beginning after the date of the explanation) within which to correct the failure, and
(iii) the person or entity has not corrected the failure voluntarily within such period.
(C) Exception for pattern or practice violators
Subparagraph (A) shall not apply to a person or entity that has or is engaging in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of this section.
(c) No authorization of national identification cards
Nothing in this section shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.
(d) Evaluation and changes in employment verification system
(1) Presidential monitoring and improvements in system
(A) Monitoring
The President shall provide for the monitoring and evaluation of the degree to which the employment verification system established under subsection (b) of this section provides a secure system to determine employment eligibility in the United States and shall examine the suitability of existing Federal and State identification systems for use for this purpose.
(B) Improvements to establish secure system
To the extent that the system established under subsection (b) of this section is found not to be a secure system to determine employment eligibility in the United States, the President shall, subject to paragraph (3) and taking into account the results of any demonstration projects conducted under paragraph (4), implement such changes in (including additions to) the requirements of subsection (b) of this section as may be necessary to establish a secure system to determine employment eligibility in the United States. Such changes in the system may be implemented only if the changes conform to the requirements of paragraph (2).
(2) Restrictions on changes in system
Any change the President proposes to implement under paragraph (1) in the verification system must be designed in a manner so the verification system, as so changed, meets the following requirements:
(A) Reliable determination of identity
The system must be capable of reliably determining whether—
(i) a person with the identity claimed by an employee or prospective employee is eligible to work, and
(ii) the employee or prospective employee is claiming the identity of another individual.
(B) Using of counterfeit-resistant documents
If the system requires that a document be presented to or examined by an employer, the document must be in a form which is resistant to counterfeiting and tampering.
(C) Limited use of system
Any personal information utilized by the system may not be made available to Government agencies, employers, and other persons except to the extent necessary to verify that an individual is not an unauthorized alien.
(D) Privacy of information
The system must protect the privacy and security of personal information and identifiers utilized in the system.
(E) Limited denial of verification
A verification that an employee or prospective employee is eligible to be employed in the United States may not be withheld or revoked under the system for any reason other than that the employee or prospective employee is an unauthorized alien.
(F) Limited use for law enforcement purposes
The system may not be used for law enforcement purposes, other than for enforcement of this chapter or
(G) Restriction on use of new documents
If the system requires individuals to present a new card or other document (designed specifically for use for this purpose) at the time of hiring, recruitment, or referral, then such document may not be required to be presented for any purpose other than under this chapter (or enforcement of
(3) Notice to Congress before implementing changes
(A) In general
The President may not implement any change under paragraph (1) unless at least—
(i) 60 days,
(ii) one year, in the case of a major change described in subparagraph (D)(iii), or
(iii) two years, in the case of a major change described in clause (i) or (ii) of subparagraph (D),
before the date of implementation of the change, the President has prepared and transmitted to the Committee on the Judiciary of the House of Representatives and to the Committee on the Judiciary of the Senate a written report setting forth the proposed change. If the President proposes to make any change regarding social security account number cards, the President shall transmit to the Committee on Ways and Means of the House of Representatives and to the Committee on Finance of the Senate a written report setting forth the proposed change. The President promptly shall cause to have printed in the Federal Register the substance of any major change (described in subparagraph (D)) proposed and reported to Congress.
(B) Contents of report
In any report under subparagraph (A) the President shall include recommendations for the establishment of civil and criminal sanctions for unauthorized use or disclosure of the information or identifiers contained in such system.
(C) Congressional review of major changes
(i) Hearings and review
The Committees on the Judiciary of the House of Representatives and of the Senate shall cause to have printed in the Congressional Record the substance of any major change described in subparagraph (D), shall hold hearings respecting the feasibility and desirability of implementing such a change, and, within the two year period before implementation, shall report to their respective Houses findings on whether or not such a change should be implemented.
(ii) Congressional action
No major change may be implemented unless the Congress specifically provides, in an appropriations or other Act, for funds for implementation of the change.
(D) Major changes defined
As used in this paragraph, the term "major change" means a change which would—
(i) require an individual to present a new card or other document (designed specifically for use for this purpose) at the time of hiring, recruitment, or referral,
(ii) provide for a telephone verification system under which an employer, recruiter, or referrer must transmit to a Federal official information concerning the immigration status of prospective employees and the official transmits to the person, and the person must record, a verification code, or
(iii) require any change in any card used for accounting purposes under the Social Security Act [
(E) General revenue funding of social security card changes
Any costs incurred in developing and implementing any change described in subparagraph (D)(iii) for purposes of this subsection shall not be paid for out of any trust fund established under the Social Security Act [
(4) Demonstration projects
(A) Authority
The President may undertake demonstration projects (consistent with paragraph (2)) of different changes in the requirements of subsection (b) of this section. No such project may extend over a period of longer than five years.
(B) Reports on projects
The President shall report to the Congress on the results of demonstration projects conducted under this paragraph.
(e) Compliance
(1) Complaints and investigations
The Attorney General shall establish procedures—
(A) for individuals and entities to file written, signed complaints respecting potential violations of subsection (a) or (g)(1) of this section,
(B) for the investigation of those complaints which, on their face, have a substantial probability of validity,
(C) for the investigation of such other violations of subsection (a) or (g)(1) of this section as the Attorney General determines to be appropriate, and
(D) for the designation in the Service of a unit which has, as its primary duty, the prosecution of cases of violations of subsection (a) or (g)(1) of this section under this subsection.
(2) Authority in investigations
In conducting investigations and hearings under this subsection—
(A) immigration officers and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated,
(B) administrative law judges, may, if necessary, compel by subpoena the attendance of witnesses and the production of evidence at any designated place or hearing, and
(C) immigration officers designated by the Commissioner may compel by subpoena the attendance of witnesses and the production of evidence at any designated place prior to the filing of a complaint in a case under paragraph (2).
In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the Attorney General, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.
(3) Hearing
(A) In general
Before imposing an order described in paragraph (4), (5), or (6) against a person or entity under this subsection for a violation of subsection (a) or (g)(1) of this section, the Attorney General shall provide the person or entity with notice and, upon request made within a reasonable time (of not less than 30 days, as established by the Attorney General) of the date of the notice, a hearing respecting the violation.
(B) Conduct of hearing
Any hearing so requested shall be conducted before an administrative law judge. The hearing shall be conducted in accordance with the requirements of
(C) Issuance of orders
If the administrative law judge determines, upon the preponderance of the evidence received, that a person or entity named in the complaint has violated subsection (a) or (g)(1) of this section, the administrative law judge shall state his findings of fact and issue and cause to be served on such person or entity an order described in paragraph (4), (5), or (6).
(4) Cease and desist order with civil money penalty for hiring, recruiting, and referral violations
With respect to a violation of subsection (a)(1)(A) or (a)(2) of this section, the order under this subsection—
(A) shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of—
(i) not less than $250 and not more than $2,000 for each unauthorized alien with respect to whom a violation of either such subsection occurred,
(ii) not less than $2,000 and not more than $5,000 for each such alien in the case of a person or entity previously subject to one order under this paragraph, or
(iii) not less than $3,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to more than one order under this paragraph; and
(B) may require the person or entity—
(i) to comply with the requirements of subsection (b) of this section (or subsection (d) of this section if applicable) with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years, and
(ii) to take such other remedial action as is appropriate.
In applying this subsection in the case of a person or entity composed 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 the control of or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
(5) Order for civil money penalty for paperwork violations
With respect to a violation of subsection (a)(1)(B) of this section, the order under this subsection shall require the person or entity to pay a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred. In determining the amount of the penalty, due consideration shall be given to the size of the business of the employer being charged, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations.
(6) Order for prohibited indemnity bonds
With respect to a violation of subsection (g)(1) of this section, the order under this subsection may provide for the remedy described in subsection (g)(2) of this section.
(7) Administrative appellate review
The decision and order of an administrative law judge shall become the final agency decision and order of the Attorney General unless either (A) within 30 days, an official delegated by regulation to exercise review authority over the decision and order modifies or vacates the decision and order, or (B) within 30 days of the date of such a modification or vacation (or within 60 days of the date of decision and order of an administrative law judge if not so modified or vacated) the decision and order is referred to the Attorney General pursuant to regulations, in which case the decision and order of the Attorney General shall become the final agency decision and order under this subsection. The Attorney General may not delegate the Attorney General's authority under this paragraph to any entity which has review authority over immigration-related matters.
(8) Judicial review
A person or entity adversely affected by a final order respecting an assessment may, within 45 days after the date the final order is issued, file a petition in the Court of Appeals for the appropriate circuit for review of the order.
(9) Enforcement of orders
If a person or entity fails to comply with a final order issued under this subsection against the person or entity, the Attorney General shall file a suit to seek compliance with the order in any appropriate district court of the United States. In any such suit, the validity and appropriateness of the final order shall not be subject to review.
(f) Criminal penalties and injunctions for pattern or practice violations
(1) Criminal penalty
Any person or entity which engages in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of this section shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels.
(2) Enjoining of pattern or practice violations
Whenever the Attorney General has reasonable cause to believe that a person or entity is engaged in a pattern or practice of employment, recruitment, or referral in violation of paragraph (1)(A) or (2) of subsection (a) of this section, the Attorney General may bring a civil action in the appropriate district court of the United States requesting such relief, including a permanent or temporary injunction, restraining order, or other order against the person or entity, as the Attorney General deems necessary.
(g) Prohibition of indemnity bonds
(1) Prohibition
It is unlawful for a person or other entity, in the hiring, recruiting, or referring for employment of any individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this section relating to such hiring, recruiting, or referring of the individual.
(2) Civil penalty
Any person or entity which is determined, after notice and opportunity for an administrative hearing under subsection (e) of this section, to have violated paragraph (1) shall be subject to a civil penalty of $1,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the employee or, if the employee cannot be located, to the general fund of the Treasury.
(h) Miscellaneous provisions
(1) Documentation
In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.
(2) Preemption
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
(3) Definition of unauthorized alien
As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.
(June 27, 1952, ch. 477, title II, ch. 8, §274A, as added
References in Text
The Social Security Act, referred to in subsec. (d)(3)(D)(iii), (E), is act Aug. 14, 1935, ch. 531,
Amendments
1996—Subsec. (a)(6).
Subsec. (a)(7).
Subsec. (b)(1)(B).
"(ii) certificate of United States citizenship;
"(iii) certificate of naturalization;
"(iv) unexpired foreign passport, if the passport has an appropriate, unexpired endorsement of the Attorney General authorizing the individual's employment in the United States; or".
Subsec. (b)(1)(B)(ii).
Subsec. (b)(1)(C).
Subsec. (b)(1)(E).
Subsec. (b)(6).
Subsec. (e)(2)(C).
Subsec. (e)(7).
Subsecs. (i) to (n).
1994—Subsec. (b)(3).
Subsec. (d)(4)(A).
1991—Subsec. (b)(1)(D)(ii).
Subsec. (b)(3).
1990—Subsec. (a)(1).
Subsec. (b)(3).
1988—Subsec. (b)(1)(A).
Subsec. (d)(3)(D).
Subsec. (e)(1).
Subsec. (e)(3).
Subsec. (e)(4)(A)(ii), (iii).
Subsec. (e)(6) to (9).
Subsec. (g)(2).
Subsec. (i)(3)(B)(iii).
Subsec. (j)(1).
Subsec. (j)(2).
Effective Date of 1996 Amendment
Section 379(b) of div. C of
Section 411(b) of div. C of
Section 412(e) of div. C of
"(1) The amendments made by subsection (a) [amending this section] shall apply with respect to hiring (or recruitment or referral) occurring on or after such date (not later than 18 months after the date of the enactment of this Act [Sept. 30, 1996]) as the Secretary of Homeland Security shall designate.
"(2) The amendment made by subsection (b) [amending this section] shall apply to individuals hired on or after 60 days after the date of the enactment of this Act.
"(3) The amendment made by subsection (c) [amending this section] shall take effect on the date of the enactment of this Act.
"(4) The amendment made by subsection (d) [amending this section] applies to hiring occurring before, on, or after the date of the enactment of this Act, but no penalty shall be imposed under subsection (e) or (f) of section 274A of the Immigration and Nationality Act [subsecs. (e) and (f) of this section] for such hiring occurring before such date."
[Section 3(b) of
Effective Date of 1994 Amendment
Section 219(z) of
Effective Date of 1991 Amendment
Amendment by section 306(b)(2) of
Effective Date of 1990 Amendment
Section 521(b) of
Section 538(b) of
Effective Date of 1988 Amendment
Amendment by
Date of Enactment of This Section for Aliens Employed Under Section 8704 of Title 46 , Shipping
Date of enactment of this section with respect to aliens deemed employed under
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Delegation of Authority
Memorandum of President of the United States, Feb. 10, 1992, 57 F.R. 24345, provided:
Memorandum for the Secretary of Health and Human Services
Section 205(c)(2)(F) of the Social Security Act (
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 274A(d)(3)(A) of the Immigration and Nationality Act (the "Act") (
(1) Authorize you to prepare and transmit, to the Committee on the Judiciary and the Committee on Ways and Means of the House of Representatives and to the Committee on the Judiciary and the Committee on Finance of the Senate, a written report regarding the substance of any proposed change in Social Security number cards, to the extent required by section 274A(d)(3)(A) of the Act, and
(2) Authorize you to cause to have printed in the Federal Register the substance of any change in the Social Security number card so proposed and reported to the designated congressional committees, to the extent required by section 274A(d)(3)(A) of the Act.
The authority delegated by this memorandum may be further redelegated within the Department of Health and Human Services.
You are hereby authorized and directed to publish this memorandum in the Federal Register.
George Bush.
Authority of President under subsec. (d)(4) of this section to undertake demonstration projects of different changes in requirements of employment verification system delegated to Attorney General by section 2 of Ex. Ord. No. 12781, Nov. 20, 1991, 56 F.R. 59203, set out as a note under
Pilot Programs for Employment Eligibility Confirmation
"SEC. 401. ESTABLISHMENT OF PROGRAMS.
"(a)
"(b)
"(c)
"(1) of the basic pilot program (described in section 403(a) of this division) in, at a minimum, 5 of the 7 States with the highest estimated population of aliens who are not lawfully present in the United States, and the Secretary of Homeland Security shall expand the operation of the program to all 50 States not later than December 1, 2004;
"(2) of the citizen attestation pilot program (described in section 403(b) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(b)(2)(A) of this division; and
"(3) of the machine-readable-document pilot program (described in section 403(c) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(c)(2) of this division.
"(d)
"(1)
"(2)
"(3)
"(4) I–9
"(5)
"(6)
"(7)
"SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.
"(a)
"(b)
"(1)
"(2)
"(c)
"(1)
"(2)
"(A)
"(i) to all its hiring (and all recruitment or referral) in the State (or States) in which the pilot program is operating, or
"(ii) to its hiring (or recruitment or referral) in one or more pilot program States or one or more places of hiring (or recruitment or referral, as the case may be) in the pilot program States.
"(B)
"(3)
"(d)
"(1)
"(2)
"(3)
"(A) to inform persons and other entities that seek information about pilot programs of the voluntary nature of such programs, and
"(B) to assist persons and other entities in electing and participating in any pilot programs in effect in the District, in complying with the requirements of section 274A, and in facilitating confirmation of the identity and employment eligibility of individuals consistent with such section.
"(e)
"(1)
"(A)
"(i)
"(ii)
"(I) shall elect the pilot program (or programs) in which the Department shall participate, and
"(II) may limit the election to hiring occurring in certain States (or geographic areas) covered by the program (or programs) and in specified divisions within the Department, so long as all hiring by such divisions and in such locations is covered.
"(iii)
"(I) a significant portion of the total hiring within each Department within States covered by a pilot program is covered under such a program, and
"(II) there is significant participation by the Federal Executive branch in each of the pilot programs.
"(B)
"(2)
"(3)
"(A) such failure shall be treated as a violation of section 274A(a)(1)(B) with respect to that individual, and
"(B) a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A).
Subparagraph (B) shall not apply in any prosecution under section 274A(f)(1).
"(f)
"SEC. 403. PROCEDURES FOR PARTICIPANTS IN PILOT PROGRAMS.
"(a)
"(1)
"(A) the individual's social security account number, if the individual has been issued such a number, and
"(B) if the individual does not attest to United States citizenship under section 274A(b)(2), such identification or authorization number established by the Immigration and Naturalization Service for the alien as the Secretary of Homeland Security shall specify,
and shall retain the original form and make it available for inspection for the period and in the manner required of I–9 forms under section 274A(b)(3).
"(2)
"(A)
"(i) A document referred to in section 274A(b)(1)(B)(ii) (as redesignated by section 412(a) of this division) must be designated by the Secretary of Homeland Security as suitable for the purpose of identification in a pilot program.
"(ii) A document referred to in section 274A(b)(1)(D) must contain a photograph of the individual.
"(iii) The person or other entity has complied with the requirements of section 274A(b)(1) with respect to examination of a document if the document reasonably appears on its face to be genuine and it reasonably appears to pertain to the individual whose identity and work eligibility is being confirmed.
"(B)
"(i) the person with the identity claimed by the individual is authorized to work in the United States, and
"(ii) the individual is claiming the identity of another person,
if a person or entity could fulfill the requirement to examine documentation contained in subparagraph (A) of section 274A(b)(1) by examining a document specified in either subparagraph (B) or (D) of such section, the Secretary of Homeland Security may provide that, for purposes of such requirement, only such a document need be examined. In such case, any reference in section 274A(b)(1)(A) to a verification that an individual is not an unauthorized alien shall be deemed to be a verification of the individual's identity.
"(3)
"(A)
"(B)
"(4)
"(A)
"(B)
"(i)
"(ii)
"(iii)
"(iv)
"(C)
"(i)
"(ii)
"(iii)
"(b)
"(1)
"(2)
"(A)
"(i) contains a photograph of the individual involved, and
"(ii) has been determined by the Secretary of Homeland Security to have security features, and to have been issued through application and issuance procedures, which make such document sufficiently resistant to counterfeiting, tampering, and fraudulent use that it is a reliable means of identification for purposes of this section.
"(B)
"(3)
"(A) the person or entity may fulfill the requirement to examine documentation contained in subparagraph (A) of section 274A(b)(1) by examining a document specified in either subparagraph (B)(i) or (D) of such section; and
"(B) the person or other entity is not required to comply with respect to such individual with the procedures described in paragraphs (3) and (4) of subsection (a), but only if the person or entity retains the form and makes it available for inspection in the same manner as in the case of an I–9 form under section 274A(b)(3).
"(4)
"(A)
"(B)
"(5)
"(c)
"(1)
"(2)
"(3)
"(d)
"SEC. 404. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
"(a)
"(1) responds to inquiries made by electing persons and other entities (including those made by the transmittal of data from machine-readable documents under the machine-readable pilot program) at any time through a toll-free telephone line or other toll-free electronic media concerning an individual's identity and whether the individual is authorized to be employed, and
"(2) maintains records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under the pilot programs.
To the extent practicable, the Secretary of Homeland Security shall seek to establish such a system using one or more nongovernmental entities.
"(b)
"(c)
"(d)
"(1) to maximize its reliability and ease of use by persons and other entities making elections under section 402(a) of this division consistent with insulating and protecting the privacy and security of the underlying information;
"(2) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received;
"(3) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; and
"(4) to have reasonable safeguards against the system's resulting in unlawful discriminatory practices based on national origin or citizenship status, including—
"(A) the selective or unauthorized use of the system to verify eligibility;
"(B) the use of the system prior to an offer of employment; or
"(C) the exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.
"(e)
"(f)
"(g)
"(h)
"(1)
"(2)
"SEC. 405. REPORTS.
"(a)
"(1) assess the degree of fraudulent attesting of United States citizenship,
"(2) include recommendations on whether or not the pilot programs should be continued or modified, and
"(3) assess the benefits of the pilot programs to employers and the degree to which they assist in the enforcement of section 274A.
"(b)
"(1) evaluating whether the problems identified by the report submitted under subsection (a) have been substantially resolved; and
"(2) describing what actions the Secretary of Homeland Security shall take before undertaking the expansion of the basic pilot program to all 50 States in accordance with section 401(c)(1), in order to resolve any outstanding problems raised in the report filed under subsection (a)."
[
Report on Additional Authority or Resources Needed for Enforcement of Employer Sanctions Provisions
Pilot Projects for Secure Documents
"(a)
"(b)
"(c)
"(d)
Interim Regulations
Section 101(a)(2) of
Grandfather Provision for Current Employees
Section 101(a)(3) of
"(A) Section 274A(a)(1) of the Immigration and Nationality Act [
"(B) Section 274A(a)(2) of the Immigration and Nationality Act shall not apply to continuing employment of an alien who was hired before the date of the enactment of this Act."
Study of Use of Telephone Verification System for Determining Employment Eligibility of Aliens
Section 101(d) of
"(1) The Attorney General, in consultation with the Secretary of Labor and the Secretary of Health and Human Services, shall conduct a study for use by the Department of Justice in determining employment eligibility of aliens in the United States. Such study shall concentrate on those data bases that are currently available to the Federal Government which through the use of a telephone and computation capability could be used to verify instantly the employment eligibility status of job applicants who are aliens.
"(2) Such study shall be conducted in conjunction with any existing Federal program which is designed for the purpose of providing information on the resident or employment status of aliens for employers. The study shall include an analysis of costs and benefits which shows the differences in costs and efficiency of having the Federal Government or a contractor perform this service. Such comparisons should include reference to such technical capabilities as processing techniques and time, verification techniques and time, back up safeguards, and audit trail performance.
"(3) Such study shall also concentrate on methods of phone verification which demonstrate the best safety and service standards, the least burden for the employer, the best capability for effective enforcement, and procedures which are within the boundaries of the Privacy Act of 1974 [
"(4) Such study shall be conducted within twelve months of the date of enactment of this Act [Nov. 6, 1986].
"(5) The Attorney General shall prepare and transmit to the Congress a report—
"(A) not later than six months after the date of enactment of this Act, describing the status of such study; and
"(B) not later than twelve months after such date, setting forth the findings of such study."
Feasibility Study of Social Security Number Validation System
Section 101(e) of
Reports on Unauthorized Alien Employment
Section 402 of
"(1) an analysis of the adequacy of the employment verification system provided under subsection (b) of that section;
"(2) a description of the status of the development and implementation of changes in that system under subsection (d) of that section, including the results of any demonstration projects conducted under paragraph (4) of such subsection; and
"(3) an analysis of the impact of the enforcement of that section on—
"(A) the employment, wages, and working conditions of United States workers and on the economy of the United States,
"(B) the number of aliens entering the United States illegally or who fail to maintain legal status after entry, and
"(C) the violation of terms and conditions of nonimmigrant visas by foreign visitors."
[Functions of President under section 402 of
Ex. Ord. No. 12989. Economy and Efficiency in Government Procurement Through Compliance With Certain Immigration and Nationality Act Provisions
Ex. Ord. No. 12989, Feb. 13, 1996, 61 F.R. 6091, as amended by Ex. Ord. No. 13286, §19, Feb. 28, 2003, 68 F.R. 10623, provided:
This order is designed to promote economy and efficiency in Government procurement. Stability and dependability are important elements of economy and efficiency. A contractor whose work force is less stable will be less likely to produce goods and services economically and efficiently than a contractor whose work force is more stable. It remains the policy of this Administration to enforce the immigration laws to the fullest extent, including the detection and deportation of illegal aliens. In these circumstances, contractors cannot rely on the continuing availability and service of illegal aliens, and contractors that choose to employ unauthorized aliens inevitably will have a less stable and less dependable work force than contractors that do not employ such persons. Because of this Administration's vigorous enforcement policy, contractors that employ unauthorized alien workers are necessarily less stable and dependable procurement sources than contractors that do not hire such persons. I find, therefore, that adherence to the general policy of not contracting with providers that knowingly employ unauthorized alien workers will promote economy and efficiency in Federal procurement.
NOW, THEREFORE, to ensure the economical and efficient administration and completion of Federal Government contracts, and by the authority vested in me as President by the Constitution and the laws of the United States of America, including
(b) It remains the policy of this Administration to fully and aggressively enforce the antidiscrimination provisions of the Immigration and Nationality Act [
(b) the Secretary of Homeland Security shall receive and may investigate complaints by employees of any entity covered under section 3(a) of this order where such complaints allege noncompliance with the INA employment provisions; and
(c) the Attorney General shall hold such hearings as are required under
(b) The head of the contracting agency may debar the contractor or an organizational unit thereof based on the determination of the Secretary of Homeland Security or the Attorney General that it is not in compliance with the INA employment provisions. Such determination shall not be reviewable in the debarment proceedings.
(c) The scope of the debarment generally should be limited to those organizational units of a Federal contractor that the Secretary of Homeland Security or the Attorney General finds are not in compliance with the INA employment provisions.
(d) The period of the debarment shall be for 1 year and may be extended for additional periods of 1 year if, using the procedures established pursuant to
(e) The Administrator of General Services shall list a debarred contractor or an organizational unit thereof on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs and the contractor or an organizational unit thereof shall be ineligible to participate in any procurement or nonprocurement activities.
(b) The Secretary of Defense, the Administrator of General Services, and the Administrator of the National Aeronautics and Space Administration shall amend the Federal Acquisition Regulation to the extent necessary and appropriate to implement the debarment responsibility and other related responsibilities assigned to heads of contracting departments and agencies under this order.
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by "or".
§1324b. Unfair immigration-related employment practices
(a) Prohibition of discrimination based on national origin or citizenship status
(1) General rule
It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in
(A) because of such individual's national origin, or
(B) in the case of a protected individual (as defined in paragraph (3)), because of such individual's citizenship status.
(2) Exceptions
Paragraph (1) shall not apply to—
(A) a person or other entity that employs three or fewer employees,
(B) a person's or entity's discrimination because of an individual's national origin if the discrimination with respect to that person or entity and that individual is covered under section 703 of the Civil Rights Act of 1964 [
(C) discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government.
(3) "Protected individual" defined
As used in paragraph (1), the term "protected individual" means an individual who—
(A) is a citizen or national of the United States, or
(B) is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under
(4) Additional exception providing right to prefer equally qualified citizens
Notwithstanding any other provision of this section, it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.
(5) Prohibition of intimidation or retaliation
It is also an unfair immigration-related employment practice for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under this section or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section. An individual so intimidated, threatened, coerced, or retaliated against shall be considered, for purposes of subsections (d) and (g) of this section, to have been discriminated against.
(6) Treatment of certain documentary practices as employment practices
A person's or other entity's request, for purposes of satisfying the requirements of
(b) Charges of violations
(1) In general
Except as provided in paragraph (2), any person alleging that the person is adversely affected directly by an unfair immigration-related employment practice (or a person on that person's behalf) or an officer of the Service alleging that an unfair immigration-related employment practice has occurred or is occurring may file a charge respecting such practice or violation with the Special Counsel (appointed under subsection (c) of this section). Charges shall be in writing under oath or affirmation and shall contain such information as the Attorney General requires. The Special Counsel by certified mail shall serve a notice of the charge (including the date, place, and circumstances of the alleged unfair immigration-related employment practice) on the person or entity involved within 10 days.
(2) No overlap with EEOC complaints
No charge may be filed respecting an unfair immigration-related employment practice described in subsection (a)(1)(A) of this section if a charge with respect to 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 [
(c) Special Counsel
(1) Appointment
The President shall appoint, by and with the advice and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment Practices (hereinafter in this section referred to as the "Special Counsel") within the Department of Justice to serve for a term of four years. In the case of a vacancy in the office of the Special Counsel the President may designate the officer or employee who shall act as Special Counsel during such vacancy.
(2) Duties
The Special Counsel shall be responsible for investigation of charges and issuance of complaints under this section and in respect of the prosecution of all such complaints before administrative law judges and the exercise of certain functions under subsection (j)(1) of this section.
(3) Compensation
The Special Counsel is entitled to receive compensation at a rate not to exceed the rate now or hereafter provided for grade GS–17 of the General Schedule, under
(4) Regional offices
The Special Counsel, in accordance with regulations of the Attorney General, shall establish such regional offices as may be necessary to carry out his duties.
(d) Investigation of charges
(1) By Special Counsel
The Special Counsel shall investigate each charge received and, within 120 days of the date of the receipt of the charge, determine whether or not there is reasonable cause to believe that the charge is true and whether or not to bring a complaint with respect to the charge before an administrative law judge. The Special Counsel may, on his own initiative, conduct investigations respecting unfair immigration-related employment practices and, based on such an investigation and subject to paragraph (3), file a complaint before such a judge.
(2) Private actions
If the Special Counsel, after receiving such a charge respecting an unfair immigration-related employment practice which alleges knowing and intentional discriminatory activity or a pattern or practice of discriminatory activity, has not filed a complaint before an administrative law judge with respect to such charge within such 120-day period, the Special Counsel shall notify the person making the charge of the determination not to file such a complaint during such period and the person making the charge may (subject to paragraph (3)) file a complaint directly before such a judge within 90 days after the date of receipt of the notice. The Special Counsel's failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period.
(3) Time limitations on complaints
No complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel. This subparagraph shall not prevent the subsequent amending of a charge or complaint under subsection (e)(1) of this section.
(e) Hearings
(1) Notice
Whenever a complaint is made that a person or entity has engaged in or is engaging in any such unfair immigration-related employment practice, an administrative law judge shall have power to issue and cause to be served upon such person or entity a copy of the complaint and a notice of hearing before the judge at a place therein fixed, not less than five days after the serving of the complaint. Any such complaint may be amended by the judge conducting the hearing, upon the motion of the party filing the complaint, in the judge's discretion at any time prior to the issuance of an order based thereon. The person or entity so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint.
(2) Judges hearing cases
Hearings on complaints under this subsection shall be considered before administrative law judges who are specially designated by the Attorney General as having special training respecting employment discrimination and, to the extent practicable, before such judges who only consider cases under this section.
(3) Complainant as party
Any person filing a charge with the Special Counsel respecting an unfair immigration-related employment practice shall be considered a party to any complaint before an administrative law judge respecting such practice and any subsequent appeal respecting that complaint. In the discretion of the judge conducting the hearing, any other person may be allowed to intervene in the proceeding and to present testimony.
(f) Testimony and authority of hearing officers
(1) Testimony
The testimony taken by the administrative law judge shall be reduced to writing. Thereafter, the judge, in his discretion, upon notice may provide for the taking of further testimony or hear argument.
(2) Authority of administrative law judges
In conducting investigations and hearings under this subsection 1 and in accordance with regulations of the Attorney General, the Special Counsel and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated. The administrative law judges by subpoena may compel the attendance of witnesses and the production of evidence at any designated place or hearing. In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the administrative law judge, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.
(g) Determinations
(1) Order
The administrative law judge shall issue and cause to be served on the parties to the proceeding an order, which shall be final unless appealed as provided under subsection (i) of this section.
(2) Orders finding violations
(A) In general
If, upon the preponderance of the evidence, an administrative law judge determines that any person or entity named in the complaint has engaged in or is engaging in any such unfair immigration-related employment practice, then the judge shall state his findings of fact and shall issue and cause to be served on such person or entity an order which requires such person or entity to cease and desist from such unfair immigration-related employment practice.
(B) Contents of order
Such an order also may require the person or entity—
(i) to comply with the requirements of
(ii) to retain for the period referred to in clause (i) and only for purposes consistent with
(iii) to hire individuals directly and adversely affected, with or without back pay;
(iv)(I) except as provided in subclauses (II) through (IV), to pay a civil penalty of not less than $250 and not more than $2,000 for each individual discriminated against,
(II) except as provided in subclauses (III) and (IV), in the case of a person or entity previously subject to a single order under this paragraph, to pay a civil penalty of not less than $2,000 and not more than $5,000 for each individual discriminated against,
(III) except as provided in subclause (IV), in the case of a person or entity previously subject to more than one order under this paragraph, to pay a civil penalty of not less than $3,000 and not more than $10,000 for each individual discriminated against, and
(IV) in the case of an unfair immigration-related employment practice described in subsection (a)(6) of this section, to pay a civil penalty of not less than $100 and not more than $1,000 for each individual discriminated against;
(v) to post notices to employees about their rights under this section and employers' obligations under
(vi) to educate all personnel involved in hiring and complying with this section or
(vii) to remove (in an appropriate case) a false performance review or false warning from an employee's personnel file; and
(viii) to lift (in an appropriate case) any restrictions on an employee's assignments, work shifts, or movements.
(C) Limitation on back pay remedy
In providing a remedy under subparagraph (B)(iii), back pay liability shall not accrue from a date more than two years prior to the date of the filing of a charge with the Special Counsel. Interim earnings or amounts earnable with reasonable diligence by the individual or individuals discriminated against shall operate to reduce the back pay otherwise allowable under such paragraph. No order shall require the hiring of an individual as an employee or the payment to an individual of any back pay, if the individual was refused employment for any reason other than discrimination on account of national origin or citizenship status.
(D) Treatment of distinct entities
In applying this subsection in the case of a person or entity composed 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 the control of or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
(3) Orders not finding violations
If upon the preponderance of the evidence an administrative law judge determines that the person or entity named in the complaint has not engaged and is not engaging in any such unfair immigration-related employment practice, then the judge shall state his findings of fact and shall issue an order dismissing the complaint.
(h) Awarding of attorney's fees
In any complaint respecting an unfair immigration-related employment practice, an administrative law judge, in the judge's discretion, may allow a prevailing party, other than the United States, a reasonable attorney's fee, if the losing party's argument is without reasonable foundation in law and fact.
(i) Review of final orders
(1) In general
Not later than 60 days after the entry of such final order, any person aggrieved by such final order may seek a review of such order in the United States court of appeals for the circuit in which the violation is alleged to have occurred or in which the employer resides or transacts business.
(2) Further review
Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive and its judgment shall be final, except that the same shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in
(j) Court enforcement of administrative orders
(1) In general
If an order of the agency is not appealed under subsection (i)(1) of this section, the Special Counsel (or, if the Special Counsel fails to act, the person filing the charge) may petition the United States district court for the district in which a violation of the order is alleged to have occurred, or in which the respondent resides or transacts business, for the enforcement of the order of the administrative law judge, by filing in such court a written petition praying that such order be enforced.
(2) Court enforcement order
Upon the filing of such petition, the court shall have jurisdiction to make and enter a decree enforcing the order of the administrative law judge. In such a proceeding, the order of the administrative law judge shall not be subject to review.
(3) Enforcement decree in original review
If, upon appeal of an order under subsection (i)(1) of this section, the United States court of appeals does not reverse such order, such court shall have the jurisdiction to make and enter a decree enforcing the order of the administrative law judge.
(4) Awarding of attorneys' fees
In any judicial proceeding under subsection (i) of this section or this subsection, the court, in its discretion, may allow a prevailing party, other than the United States, a reasonable attorney's fee as part of costs but only if the losing party's argument is without reasonable foundation in law and fact.
(k) Termination dates
(1) This section shall not apply to discrimination in hiring, recruiting, or referring, or discharging of individuals occurring after the date of any termination of the provisions of
(2) The provisions of this section shall terminate 30 calendar days after receipt of the last report required to be transmitted under section 1324a(j) 2 of this title if—
(A) the Comptroller General determines, and so reports in such report that—
(i) no significant discrimination has resulted, against citizens or nationals of the United States or against any eligible workers seeking employment, from the implementation of
(ii) such section has created an unreasonable burden on employers hiring such workers; and
(B) there has been enacted, within such period of 30 calendar days, a joint resolution stating in substance that the Congress approves the findings of the Comptroller General contained in such report.
The provisions of subsections (m) and (n) 2 of
(l) Dissemination of information concerning anti-discrimination provisions
(1) Not later than 3 months after November 29, 1990, the Special Counsel, in cooperation with the chairman of the Equal Employment Opportunity Commission, the Secretary of Labor, and the Administrator of the Small Business Administration, shall conduct a campaign to disseminate information respecting the rights and remedies prescribed under this section and under title VII of the Civil Rights Act of 1964 [
(2) In order to carry out the campaign under this subsection, the Special Counsel—
(A) may, to the extent deemed appropriate and subject to the availability of appropriations, contract with public and private organizations for outreach activities under the campaign, and
(B) shall consult with the Secretary of Labor, the chairman of the Equal Employment Opportunity Commission, and the heads of such other agencies as may be appropriate.
(3) There are authorized to be appropriated to carry out this subsection $10,000,000 for each fiscal year (beginning with fiscal year 1991).
(June 27, 1952, ch. 477, title II, ch. 8, §274B, as added
References in Text
The Civil Rights Act of 1964, referred to in subsecs. (b)(2) and (l)(1), is
Subsections (j), (l), (m), and (n) of
Amendments
1996—Subsec. (a)(3)(B).
Subsec. (a)(6).
1994—Subsec. (g)(2)(C).
1991—Subsec. (g)(2)(B)(iv)(II).
Subsec. (g)(2)(B)(iv)(IV).
Subsec. (g)(2)(B)(v), (vi).
Subsec. (g)(2)(B)(vii).
Subsec. (g)(2)(B)(viii).
Subsec. (g)(2)(D).
1990—Subsec. (a)(1)(B).
Subsec. (a)(3).
Subsec. (a)(3)(B).
"(i) is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under
"(ii) evidences an intention to become a citizen of the United States through completing a declaration of intention to become a citizen;
but does not", and in closing provisions substituted "(i)" and "(ii)" for "(I)" and "(II)", respectively.
Subsec. (a)(5).
Subsec. (a)(6).
Subsec. (d)(2).
Subsec. (g)(2)(B)(iii).
Subsec. (g)(2)(B)(iv).
"(I) except as provided in subclause (II), to pay a civil penalty of not more than $1,000 for each individual discriminated against, and
"(II) in the case of a person or entity previously subject to such an order, to pay a civil penalty of not more than $2,000 for each individual discriminated against."
Subsec. (g)(2)(B)(v) to (viii).
Subsec. (l).
1988—Subsec. (a)(1).
Subsec. (e)(3).
Subsec. (g)(2)(A).
Subsec. (g)(2)(B)(ii).
Subsec. (g)(3).
Subsec. (h).
Effective Date of 1996 Amendment
Section 421(b) of div. C of
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Section 532(b) of
Section 533(b) of
Section 534(b) of
Section 535(b) of
Section 536(b) of
Section 537(b) of
Section 539(b) of
Effective Date of 1988 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
References in Other Laws to GS–16, 17, or 18 Pay Rates
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of
No Effect on EEOC Authority
Section 102(b) of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "section".
2 See References in Text note below.
§1324c. Penalties for document fraud
(a) Activities prohibited
It is unlawful for any person or entity knowingly—
(1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this chapter or to obtain a benefit under this chapter,
(2) to use, attempt to use, possess, obtain, accept, or receive or to provide any forged, counterfeit, altered, or falsely made document in order to satisfy any requirement of this chapter or to obtain a benefit under this chapter,
(3) to use or attempt to use or to provide or attempt to provide any document lawfully issued to or with respect to a person other than the possessor (including a deceased individual) for the purpose of satisfying a requirement of this chapter or obtaining a benefit under this chapter,
(4) to accept or receive or to provide any document lawfully issued to or with respect to a person other than the possessor (including a deceased individual) for the purpose of complying with
(5) to prepare, file, or assist another in preparing or filing, any application for benefits under this chapter, or any document required under this chapter, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted, or
(6)(A) to present before boarding a common carrier for the purpose of coming to the United States a document which relates to the alien's eligibility to enter the United States, and (B) to fail to present such document to an immigration officer upon arrival at a United States port of entry.
(b) Exception
This section does not prohibit 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 any activity authorized under
(c) Construction
Nothing in this section shall be construed to diminish or qualify any of the penalties available for activities prohibited by this section but proscribed as well in title 18.
(d) Enforcement
(1) Authority in investigations
In conducting investigations and hearings under this subsection—
(A) immigration officers and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated,
(B) administrative law judges, may, if necessary, compel by subpoena the attendance of witnesses and the production of evidence at any designated place or hearing, and
(C) immigration officers designated by the Commissioner may compel by subpoena the attendance of witnesses and the production of evidence at any designated place prior to the filing of a complaint in a case under paragraph (2).
In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the Attorney General, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.
(2) Hearing
(A) In general
Before imposing an order described in paragraph (3) against a person or entity under this subsection for a violation of subsection (a) of this section, the Attorney General shall provide the person or entity with notice and, upon request made within a reasonable time (of not less than 30 days, as established by the Attorney General) of the date of the notice, a hearing respecting the violation.
(B) Conduct of hearing
Any hearing so requested shall be conducted before an administrative law judge. The hearing shall be conducted in accordance with the requirements of
(C) Issuance of orders
If the administrative law judge determines, upon the preponderance of the evidence received, that a person or entity has violated subsection (a) of this section, the administrative law judge shall state his findings of fact and issue and cause to be served on such person or entity an order described in paragraph (3).
(3) Cease and desist order with civil money penalty
With respect to a violation of subsection (a) of this section, the order under this subsection shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of—
(A) not less than $250 and not more than $2,000 for each document that is the subject of a violation under subsection (a) of this section, or
(B) in the case of a person or entity previously subject to an order under this paragraph, not less than $2,000 and not more than $5,000 for each document that is the subject of a violation under subsection (a) of this section.
In applying this subsection in the case of a person or entity composed 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 the control of or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
(4) Administrative appellate review
The decision and order of an administrative law judge shall become the final agency decision and order of the Attorney General unless either (A) within 30 days, an official delegated by regulation to exercise review authority over the decision and order modifies or vacates the decision and order, or (B) within 30 days of the date of such a modification or vacation (or within 60 days of the date of decision and order of an administrative law judge if not so modified or vacated) the decision and order is referred to the Attorney General pursuant to regulations, in which case the decision and order of the Attorney General shall become the final agency decision and order under this subsection.
(5) Judicial review
A person or entity adversely affected by a final order under this section may, within 45 days after the date the final order is issued, file a petition in the Court of Appeals for the appropriate circuit for review of the order.
(6) Enforcement of orders
If a person or entity fails to comply with a final order issued under this section against the person or entity, the Attorney General shall file a suit to seek compliance with the order in any appropriate district court of the United States. In any such suit, the validity and appropriateness of the final order shall not be subject to review.
(7) Waiver by Attorney General
The Attorney General may waive the penalties imposed by this section with respect to an alien who knowingly violates subsection (a)(6) of this section if the alien is granted asylum under
(e) Criminal penalties for failure to disclose role as document preparer
(1) Whoever, in any matter within the jurisdiction of the Service, knowingly and willfully fails to disclose, conceals, or covers up the fact that they have, on behalf of any person and for a fee or other remuneration, prepared or assisted in preparing an application which was falsely made (as defined in subsection (f) of this section) for immigration benefits, shall be fined in accordance with title 18, imprisoned for not more than 5 years, or both, and prohibited from preparing or assisting in preparing, whether or not for a fee or other remuneration, any other such application.
(2) Whoever, having been convicted of a violation of paragraph (1), knowingly and willfully prepares or assists in preparing an application for immigration benefits pursuant to this chapter, or the regulations promulgated thereunder, whether or not for a fee or other remuneration and regardless of whether in any matter within the jurisdiction of the Service, shall be fined in accordance with title 18, imprisoned for not more than 15 years, or both, and prohibited from preparing or assisting in preparing any other such application.
(f) Falsely make
For purposes of this section, the term "falsely make" means to prepare or provide an application or document, with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted.
(June 27, 1952, ch. 477, title II, ch. 8, §274C, as added
Amendments
1996—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (a)(5), (6).
Subsec. (d)(1)(C).
Subsec. (d)(3)(A), (B).
Subsec. (d)(4).
Subsec. (d)(7).
Subsec. (e).
Subsec. (f).
1994—Subsec. (b).
1991—Subsec. (a)(2) to (4).
Effective Date of 1996 Amendment
Section 212(e) of div. C of
Amendment by section 308(g)(10)(D) of
Amendment by section 379(a) of
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by
Effective Date
Section applicable to persons or entities that have committed violations on or after Nov. 29, 1990, see section 544(d) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1324d. Civil penalties for failure to depart
(a) In general
Any alien subject to a final order of removal who—
(1) willfully fails or refuses to—
(A) depart from the United States pursuant to the order,
(B) make timely application in good faith for travel or other documents necessary for departure, or
(C) present for removal at the time and place required by the Attorney General; or
(2) conspires to or takes any action designed to prevent or hamper the alien's departure pursuant to the order,
shall pay a civil penalty of not more than $500 to the Commissioner for each day the alien is in violation of this section.
(b) Construction
Nothing in this section shall be construed to diminish or qualify any penalties to which an alien may be subject for activities proscribed by
(June 27, 1952, ch. 477, title II, ch. 8, §274D, as added
Effective Date
Section 308(c) of div. C of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
Section Referred to in Other Sections
This section is referred to in
§1325. Improper entry by alien
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
(b) Improper time or place; civil penalties
Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of—
(1) at least $50 and not more than $250 for each such entry (or attempted entry); or
(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.
(c) Marriage fraud
Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.
(d) Immigration-related entrepreneurship fraud
Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both.
(June 27, 1952, ch. 477, title II, ch. 8, §275,
Amendments
1996—Subsecs. (b) to (d).
1991—Subsec. (a).
1990—Subsec. (a).
Subsec. (c).
1986—
Effective Date of 1996 Amendment
Section 105(b) of div. C of
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by section 121(b)(3) of
Amendment by section 543(b)(2) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1326. Reentry of removed aliens
(a) In general
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be fined under title 18, or imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—
(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both;
(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;
(3) who has been excluded from the United States pursuant to
(4) who was removed from the United States pursuant to
For the purposes of this subsection, the term "removal" includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.
(c) Reentry of alien deported prior to completion of term of imprisonment
Any alien deported pursuant to section 1252(h)(2) 2 of this title who enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien's reentry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release. Such alien shall be subject to such other penalties relating to the reentry of deported aliens as may be available under this section or any other provision of law.
(d) Limitation on collateral attack on underlying deportation order
In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates that—
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
(June 27, 1952, ch. 477, title II, ch. 8, §276,
References in Text
Amendments
1996—
Subsec. (a)(1).
Subsec. (a)(2)(B).
Subsec. (b).
Subsec. (b)(2).
Subsec. (b)(3).
Subsec. (b)(4).
Subsec. (c).
Subsec. (d).
1994—Subsec. (b).
1990—Subsec. (a).
1988—
Effective Date of 1996 Amendments
Amendment by sections 305(b) and 308(d)(4)(J), (e)(1)(K), (14)(A) of
Section 324(c) of div. C of
Section 401(f) of
Section 441(b) of
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Section 7345(b) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
References to Order of Removal Deemed To Include Order of Exclusion and Deportation
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of
Section Referred to in Other Sections
This section is referred to in
1 So in original. The period probably should be a semicolon.
2 See References in Text note below.
§1327. Aiding or assisting certain aliens to enter
Any person who knowingly aids or assists any alien inadmissible under section 1182(a)(2) (insofar as an alien inadmissible under such section has been convicted of an aggravated felony) or 1182(a)(3) (other than subparagraph (E) thereof) of this title to enter the United States, or who connives or conspires with any person or persons to allow, procure, or permit any such alien to enter the United States, shall be fined under title 18, or imprisoned not more than 10 years, or both.
(June 27, 1952, ch. 477, title II, ch. 8, §277,
Amendments
1996—
1990—
1988—
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by section 543(b)(4) of
Amendment by section 603(a)(16) of
Effective Date of 1988 Amendment
Section 7346(b) of
Section Referred to in Other Sections
This section is referred to in title 10 section 374; title 18 sections 1961, 2516.
§1328. Importation of alien for immoral purpose
The importation into the United States of any alien for the purpose of prostitution, or for any other immoral purpose, is forbidden. Whoever shall, directly or indirectly, import, or attempt to import into the United States any alien for the purpose of prostitution or for any other immoral purpose, or shall hold or attempt to hold any alien for any such purpose in pursuance of such illegal importation, or shall keep, maintain, control, support, employ, or harbor in any house or other place, for the purpose of prostitution or for any other immoral purpose, any alien, in pursuance of such illegal importation, shall be fined under title 18, or imprisoned not more than 10 years, or both. The trial and punishment of offenses under this section may be in any district to or into which such alien is brought in pursuance of importation by the person or persons accused, or in any district in which a violation of any of the provisions of this section occurs. In all prosecutions under this section, the testimony of a husband or wife shall be admissible and competent evidence against each other.
(June 27, 1952, ch. 477, title II, ch. 8, §278,
Amendments
1990—
Effective Date of 1990 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1329. Jurisdiction of district courts
The district courts of the United States shall have jurisdiction of all causes, civil and criminal, brought by the United States that arise under the provisions of this subchapter. It shall be the duty of the United States attorney of the proper district to prosecute every such suit when brought by the United States. Notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under
(June 27, 1952, ch. 477, title II, ch. 8, §279,
Amendments
1996—
Effective Date of 1996 Amendment
Section 381(b) of div. C of
§1330. Collection of penalties and expenses
(a) Notwithstanding any other provisions of this subchapter, the withholding or denial of clearance of or a lien upon any vessel or aircraft provided for in
(b)(1) There is established in the general fund of the Treasury a separate account which shall be known as the "Immigration Enforcement Account". Notwithstanding any other section of this subchapter, there shall be deposited as offsetting receipts into the Immigration Enforcement Account amounts described in paragraph (2) to remain available until expended.
(2) The amounts described in this paragraph are the following:
(A) The increase in penalties collected resulting from the amendments made by sections 203(b) and 543(a) of the Immigration Act of 1990.
(B) Civil penalties collected under
(3)(A) The Secretary of the Treasury shall refund out of the Immigration Enforcement Account to any appropriation the amount paid out of such appropriation for expenses incurred by the Attorney General for activities that enhance enforcement of provisions of this subchapter. Such activities include—
(i) the identification, investigation, apprehension, detention, and removal of criminal aliens;
(ii) the maintenance and updating of a system to identify and track criminal aliens, deportable aliens, inadmissible aliens, and aliens illegally entering the United States; and
(iii) for the repair, maintenance, or construction on the United States border, in areas experiencing high levels of apprehensions of illegal aliens, of structures to deter illegal entry into the United States.
(B) The amounts which are required to be refunded under subparagraph (A) shall be refunded at least quarterly on the basis of estimates made by the Attorney General of the expenses referred to in subparagraph (A). Proper adjustments shall be made in the amounts subsequently refunded under subparagraph (A) to the extent prior estimates were in excess of, or less than, the amount required to be refunded under subparagraph (A).
(C) The amounts required to be refunded from the Immigration Enforcement Account for fiscal year 1996 and thereafter shall be refunded in accordance with estimates made in the budget request of the Attorney General for those fiscal years. Any proposed changes in the amounts designated in such budget requests shall only be made after notification to the Committees on Appropriations of the House of Representatives and the Senate in accordance with section 605 of
(D) The Attorney General shall prepare and submit annually to the Congress statements of financial condition of the Immigration Enforcement Account, including beginning account balance, revenues, withdrawals, and ending account balance and projection for the ensuing fiscal year.
(June 27, 1952, ch. 477, title II, ch. 8, §280,
References in Text
Sections 203(b) and 543(a) of the Immigration Act of 1990, referred to in subsec. (b)(2)(A), are sections 203(b) and 543(a) of
Section 605 of
Amendments
1996—Subsec. (a).
Subsec. (b).
"(1) for the Immigration and Naturalization Service for activities that enhance enforcement of provisions of this subchapter, including—
"(A) the identification, investigation, and apprehension of criminal aliens,
"(B) the implementation of the system described in
"(C) for the repair, maintenance, or construction on the United States border, in areas experiencing high levels of apprehensions of illegal aliens, of structures to deter illegal entry into the United States; and
"(2) for the Executive Office for Immigration Review in the Department of Justice for the purpose of removing the backlogs in the preparation of transcripts of deportation proceedings conducted under
1994—Subsec. (b)(1)(C).
1990—
Effective Date of 1996 Amendment
Amendment by section 308(g)(4)(C) of
Section 382(c) of div. C of
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1990 Amendment
Section 542(b) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Part IX—Miscellaneous
§1351. Nonimmigrant visa fees
The fees for the furnishing and verification of applications for visas by nonimmigrants of each foreign country and for the issuance of visas to nonimmigrants of each foreign country shall be prescribed by the Secretary of State, if practicable, in amounts corresponding to the total of all visa, entry, residence, or other similar fees, taxes, or charges assessed or levied against nationals of the United States by the foreign countries of which such nonimmigrants are nationals or stateless residents: Provided, That nonimmigrant visas issued to aliens coming to the United States in transit to and from the headquarters district of the United Nations in accordance with the provisions of the Headquarters Agreement shall be gratis. Subject to such criteria as the Secretary of State may prescribe, including the duration of stay of the alien and the financial burden upon the charitable organization, the Secretary of State shall waive or reduce the fee for application and issuance of a nonimmigrant visa for any alien coming to the United States primarily for, or in activities related to, a charitable purpose involving health or nursing care, the provision of food or housing, job training, or any other similar direct service or assistance to poor or otherwise needy individuals in the United States.
(June 27, 1952, ch. 477, title II, ch. 9, §281,
References in Text
The Headquarters Agreement, referred to in text, is set out as a note under
Amendments
1997—
1968—
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Effective Date of 1997 Amendment
Section 2(b) of
Effective Date of 1965 Amendment
For effective date of amendment by
Surcharge for Processing Machine Readable Nonimmigrant Visas
Similar provisions were contained in the following prior appropriations acts:
"(1)(A) Notwithstanding any other provision of law and subject to subparagraph (B), the Secretary of State and the Attorney General shall impose, for the processing of any application for the issuance of a machine readable combined border crossing card and nonimmigrant visa under section 101(a)(15)(B) of the Immigration and Nationality Act [
"(B) The Secretary of State and the Attorney General may not commence implementation of the requirement in subparagraph (A) until the later of—
"(i) the date that is 6 months after the date of enactment of this Act [Oct. 21, 1998]; or
"(ii) the date on which the Secretary sets the amount of the fee or surcharge in accordance with paragraph (3).
"(2)(A) Except as provided in subparagraph (B), if the fee for a machine readable combined border crossing card and nonimmigrant visa issued under section 101(a)(15)(B) of the Immigration and Nationality Act [
"(i) the date on which the child attains the age of 15; or
"(ii) ten years after its date of issue.
"(B) At the request of the parent or guardian of any alien under 15 years of age otherwise covered by subparagraph (A), the Secretary of State and the Attorney General may charge the non-reduced fee for the processing of an application for the issuance of a machine readable combined border crossing card and nonimmigrant visa under section 101(a)(15)(B) of the Immigration and Nationality Act provided that the machine readable combined border crossing card and nonimmigrant visa is issued to expire as of the same date as is usually provided for visas issued under that section.
"(3) Notwithstanding any other provision of law, the Secretary of State shall set the amount of the fee or surcharge authorized pursuant to section 140(a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (
[
[For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
"(1) Notwithstanding any other provision of law, the Secretary of State is authorized to charge a fee or surcharge for processing machine readable nonimmigrant visas and machine readable combined border crossing identification cards and nonimmigrant visas.
"(2) Fees collected under the authority of paragraph (1) shall be deposited as an offsetting collection to any Department of State appropriation, to recover the costs of providing consular services. Such fees shall remain available for obligation until expended.
"(3) For the fiscal year 2003, any amount that exceeds $460,000,000 may be made available only if a notification is submitted to Congress in accordance with the procedures applicable to reprogramming notifications under section 34 of the State Department Basic Authorities Act of 1956 [
Provisions directing the continuing effect for specific periods of authorities provided under section 140(a) of
Section Referred to in Other Sections
This section is referred to in
§1352. Printing of reentry permits and blank forms of manifest and crew lists; sale to public
(a) Reentry permits issued under
(b) The Public Printer is authorized to print for sale to the public by the Superintendent of Documents, upon prepayment, copies of blank forms of manifests and crew lists and such other forms as may be prescribed and authorized by the Attorney General to be sold pursuant to the provisions of this subchapter.
(June 27, 1952, ch. 477, title II, ch. 9, §282,
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1353. Travel expenses and expense of transporting remains of officers and employees dying outside of United States
When officers, inspectors, or other employees of the Service are ordered to perform duties in a foreign country, or are transferred from one station to another, in the United States or in a foreign country, or while performing duties in any foreign country become eligible for voluntary retirement and return to the United States, they shall be allowed their traveling expenses in accordance with such regulations as the Attorney General may deem advisable, and they may also be allowed, within the discretion and under written orders of the Attorney General, the expenses incurred for the transfer of their wives and dependent children, their household effects and other personal property, including the expenses for packing, crating, freight, unpacking, temporary storage, and drayage thereof in accordance with subchapter II of
(June 27, 1952, ch. 477, title II, ch. 9, §283,
Amendments
1988—
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1353a. Officers and employees; overtime services; extra compensation; length of working day
The Attorney General shall fix a reasonable rate of extra compensation for overtime services of immigration officers and employees of the Immigration and Naturalization Service who may be required to remain on duty between the hours of five o'clock postmeridian and eight o'clock antemeridian, or on Sundays or holidays, to perform duties in connection with the examination and landing of passengers and crews of steamships, trains, airplanes, or other vehicles, arriving in the United States from a foreign port by water, land, or air, such rates to be fixed on a basis of one-half day's additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond five o'clock postmeridian (but not to exceed two and one-half days' pay for the full period from five o'clock postmeridian to eight o'clock antemeridian) and two additional days' pay for Sunday and holiday duty; in those ports where the customary working hours are other than those heretofore mentioned, the Attorney General is vested with authority to regulate the hours of such employees so as to agree with the prevailing working hours in said ports, but nothing contained in this section shall be construed in any manner to affect or alter the length of a working day for such employees or the overtime pay herein fixed.
(Mar. 2, 1931, ch. 368, §1,
Codification
Section was not enacted as part of the Immigration and Nationality Act which comprises this chapter.
Ex. Ord. No. 6166, is authority for the substitution of "Immigration and Naturalization Service" for "Immigration Service"; and 1940 Reorg. Plan No. V. is authority for the substitution of "Attorney General" for "Secretary of Labor." See note set out under
Section was formerly classified to
Amendments
1952—Act June 27, 1952, substituted "immigration officers" for "inspectors".
Transfer of Functions
Functions of all other officers of Department of Justice and functions of all agencies and employees of such Department, with a few exceptions, transferred to Attorney General, with power vested in him to authorize their performance or the performance of any of his functions by any of such officers, agencies, and employees by 1950 Reorg. Plan No. 2, §§1, 2, eff. May 24, 1950, 15 F.R. 3173,
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1353b. Extra compensation; payment
The said extra compensation shall be paid by the master, owner, agent, or consignee of such vessel or other conveyance arriving in the United States from a foreign port to the Attorney General, who shall pay the same to the several immigration officers and employees entitled thereto as provided in this section and
(Mar. 2, 1931, ch. 368, §2,
Codification
Section was not enacted as part of the Immigration and Nationality Act which comprises this chapter.
1940 Reorg. Plan No. V is authority for the substitution of "Attorney General" for "Secretary of Labor." See note set out under
Section was formerly classified to
Transfer of Functions
Functions of all other officers of Department of Justice and functions of all agencies and employees of such Department, with a few exceptions, transferred to Attorney General, with power vested in him to authorize their performance or performance of any of his functions by any of such officers, agencies, and employees, by 1950 Reorg. Plan No. 2, §§1, 2, eff. May 24, 1950, 15 F.R. 3173,
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1353c. Immigration officials; service in foreign contiguous territory
Nothing in
(Mar. 4, 1921, ch. 161, §1,
Codification
"
Section was not enacted as part of the Immigration and Nationality Act which comprises this chapter.
Section constituted a part of section 1 of act Mar. 4, 1921, ch. 161,
Section was formerly classified to
Amendments
1954—Act Sept. 3, 1954, amended section generally, substituting "
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1353d. Disposition of money received as extra compensation
Moneys collected on or after July 1, 1941, as extra compensation for overtime service of immigration officers and employees of the Immigration Service pursuant to
(Aug. 22, 1940, ch. 688,
Codification
Section was not enacted as part of the Immigration and Nationality Act which comprises this chapter.
Section was formerly classified to
Amendments
1952—Act June 27, 1952, substituted "immigration officers" for "inspectors".
Transfer of Functions
Functions of all other officers of Department of Justice and functions of all agencies and employees of such Department, with a few exceptions, transferred to Attorney General, with power vested in him to authorize their performance or performance of any of his functions by any of such officers, agencies, and employees, by 1950 Reorg. Plan No. 2, §§1, 2, eff. May 24, 1950, 15 F.R. 3173,
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1354. Applicability to members of the Armed Forces
Nothing contained in this subchapter shall be construed so as to limit, restrict, deny, or affect the coming into or departure from the United States of an alien member of the Armed Forces of the United States who is in the uniform of, or who bears documents identifying him as a member of, such Armed Forces, and who is coming to or departing from the United States under official orders or permit of such Armed Forces: Provided, That nothing contained in this section shall be construed to give to or confer upon any such alien any other privileges, rights, benefits, exemptions, or immunities under this chapter, which are not otherwise specifically granted by this chapter.
(June 27, 1952, ch. 477, title II, ch. 9, §284,
§1355. Disposal of privileges at immigrant stations; rentals; retail sale; disposition of receipts
(a) Subject to such conditions and limitations as the Attorney General shall prescribe, all exclusive privileges of exchanging money, transporting passengers or baggage, keeping eating houses, or other like privileges in connection with any United States immigrant station, shall be disposed of to the lowest responsible and capable bidder (other than an alien) in accordance with the provision of
(b) Such articles determined by the Attorney General to be necessary to the health and welfare of aliens detained at any immigrant station, when not otherwise readily procurable by such aliens, may be sold at reasonable prices to such aliens through Government canteens operated by the Service, under such conditions and limitations as the Attorney General shall prescribe.
(c) All rentals or other receipts accruing from the disposal of privileges, and all moneys arising from the sale of articles through Service-operated canteens, authorized by this section, shall be covered into the Treasury to the credit of the appropriation for the enforcement of this subchapter.
(June 27, 1952, ch. 477, title II, ch. 9, §285,
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1356. Disposition of moneys collected under the provisions of this subchapter
(a) Detention, transportation, hospitalization, and all other expenses of detained aliens; expenses of landing stations
All moneys paid into the Treasury to reimburse the Service for detention, transportation, hospitalization, and all other expenses of detained aliens paid from the appropriation for the enforcement of this chapter, and all moneys paid into the Treasury to reimburse the Service for expenses of landing stations referred to in
(b) Purchase of evidence
Moneys expended from appropriations for the Service for the purchase of evidence and subsequently recovered shall be reimbursed to the current appropriation for the Service.
(c) Fees and administrative fines and penalties; exception
Except as otherwise provided in subsection (a) and subsection (b) of this section, or in any other provision of this subchapter, all moneys received in payment of fees and administrative fines and penalties under this subchapter shall be covered into the Treasury as miscellaneous receipts: Provided, however, That all fees received from applicants residing in the Virgin Islands of the United States, and in Guam, required to be paid under
(d) Schedule of fees
In addition to any other fee authorized by law, the Attorney General shall charge and collect $7 per individual for the immigration inspection of each passenger arriving at a port of entry in the United States, or for the preinspection of a passenger in a place outside of the United States prior to such arrival, aboard a commercial aircraft or commercial vessel.
(e) Limitations on fees
(1) Except as provided in paragraph (3), no fee shall be charged under subsection (d) of this section for immigration inspection or preinspection provided in connection with the arrival of any passenger, other than aircraft passengers, whose journey originated in the following:
(A) Canada,
(B) Mexico,
(C) a State, territory or possession of the United States, or
(D) any adjacent island (within the meaning of
(2) No fee may be charged under subsection (d) of this section with respect to the arrival of any passenger—
(A) who is in transit to a destination outside the United States, and
(B) for whom immigration inspection services are not provided.
(3) The Attorney General shall charge and collect $3 per individual for the immigration inspection or pre-inspection of each commercial vessel passenger whose journey originated in the United States or in any place set forth in paragraph (1): Provided, That this requirement shall not apply to immigration inspection at designated ports of entry of passengers arriving by ferry, or by Great Lakes vessels on the Great Lakes and connecting waterways when operating on a regular schedule. For the purposes of this paragraph, the term "ferry" means a vessel, in other than ocean or coastwise service, having provisions only for deck passengers and/or vehicles, operating on a short run on a frequent schedule between two points over the most direct water route, and offering a public service of a type normally attributed to a bridge or tunnel.
(f) Collection
(1) Each person that issues a document or ticket to an individual for transportation by a commercial vessel or commercial aircraft into the United States shall—
(A) collect from that individual the fee charged under subsection (d) of this section at the time the document or ticket is issued; and
(B) identify on that document or ticket the fee charged under subsection (d) of this section as a Federal inspection fee.
(2) If—
(A) a document or ticket for transportation of a passenger into the United States is issued in a foreign country; and
(B) the fee charged under subsection (d) of this section is not collected at the time such document or ticket is issued;
the person providing transportation to such passenger shall collect such fee at the time such passenger departs from the United States and shall provide such passenger a receipt for the payment of such fee.
(3) The person who collects fees under paragraph (1) or (2) shall remit those fees to the Attorney General at any time before the date that is thirty-one days after the close of the calendar quarter in which the fees are collected, except the fourth quarter payment for fees collected from airline passengers shall be made on the date that is ten days before the end of the fiscal year, and the first quarter payment shall include any collections made in the preceding quarter that were not remitted with the previous payment. Regulations issued by the Attorney General under this subsection with respect to the collection of the fees charged under subsection (d) of this section and the remittance of such fees to the Treasury of the United States shall be consistent with the regulations issued by the Secretary of the Treasury for the collection and remittance of the taxes imposed by subchapter C of
(g) Provision of immigration inspection and preinspection services
Notwithstanding
(1) immigration serviced airports, and
(2) places located outside of the United States at which an immigration officer is stationed for the purpose of providing such immigration services.
(h) Disposition of receipts
(1)(A) There is established in the general fund of the Treasury a separate account which shall be known as the "Immigration User Fee Account". Notwithstanding any other section of this subchapter, there shall be deposited as offsetting receipts into the Immigration User Fee Account all fees collected under subsection (d) of this section, to remain available until expended..1 At the end of each 2-year period, beginning with the creation of this account, the Attorney General, following a public rulemaking with opportunity for notice and comment, shall submit a report to the Congress concerning the status of the account, including any balances therein, and recommend any adjustment in the prescribed fee that may be required to ensure that the receipts collected from the fee charged for the succeeding two years equal, as closely as possible, the cost of providing these services.
(B) Notwithstanding any other provisions of law, all civil fines or penalties collected pursuant to
(2)(A) The Secretary of the Treasury shall refund out of the Immigration User Fee Account to any appropriation the amount paid out of such appropriation for expenses incurred by the Attorney General in providing immigration inspection and preinspection services for commercial aircraft or vessels and in—
(i) providing overtime immigration inspection services for commercial aircraft or vessels;
(ii) administration of debt recovery, including the establishment and operation of a national collections office;
(iii) expansion, operation and maintenance of information systems for nonimmigrant control and debt collection;
(iv) detection of fraudulent documents used by passengers traveling to the United States, including training of, and technical assistance to, commercial airline personnel regarding such detection;
(v) providing detention and removal services for inadmissible aliens arriving on commercial aircraft and vessels and for any alien who is inadmissible under
(vi) providing removal and asylum proceedings at air or sea ports-of-entry for inadmissible aliens arriving on commercial aircraft and vessels including immigration removal proceedings resulting from presentation of fraudulent documents and failure to present documentation and for any alien who is inadmissible under
The Attorney General shall provide for expenditures for training and assistance described in clause (iv) in an amount, for any fiscal year, not less than 5 percent of the total of the expenses incurred that are described in the previous sentence.
(B) The amounts which are required to be refunded under subparagraph (A) shall be refunded at least quarterly on the basis of estimates made by the Attorney General of the expenses referred to in subparagraph (A). Proper adjustments shall be made in the amounts subsequently refunded under subparagraph (A) to the extent prior estimates were in excess of, or less than, the amount required to be refunded under subparagraph (A).
(i) Reimbursement
Notwithstanding any other provision of law, the Attorney General is authorized to receive reimbursement from the owner, operator, or agent of a private or commercial aircraft or vessel, or from any airport or seaport authority for expenses incurred by the Attorney General in providing immigration inspection services which are rendered at the request of such person or authority (including the salary and expenses of individuals employed by the Attorney General to provide such immigration inspection services). The Attorney General's authority to receive such reimbursement shall terminate immediately upon the provision for such services by appropriation.
(j) Regulations
The Attorney General may prescribe such rules and regulations as may be necessary to carry out the provisions of this section.
(k) Advisory committee
In accordance with the provisions of the Federal Advisory Committee Act, the Attorney General shall establish an advisory committee, whose membership shall consist of representatives from the airline and other transportation industries who may be subject to any fee or charge authorized by law or proposed by the Immigration and Naturalization Service for the purpose of covering expenses incurred by the Immigration and Naturalization Service. The advisory committee shall meet on a periodic basis and shall advise the Attorney General on issues related to the performance of the inspectional services of the Immigration and Naturalization Service. This advice shall include, but not be limited to, such issues as the time periods during which such services should be performed, the proper number and deployment of inspection officers, the level of fees, and the appropriateness of any proposed fee. The Attorney General shall give substantial consideration to the views of the advisory committee in the exercise of his duties.
(l) Report to Congress
In addition to the reporting requirements established pursuant to subsection (h) of this section, the Attorney General shall prepare and submit annually to the Congress, not later than March 31st of each year, a statement of the financial condition of the "Immigration User Fee Account" including beginning account balance, revenues, withdrawals and their purpose, ending balance, projections for the ensuing fiscal year and a full and complete workload analysis showing on a port by port basis the current and projected need for inspectors. The statement shall indicate the success rate of the Immigration and Naturalization Service in meeting the forty-five minute inspection standard and shall provide detailed statistics regarding the number of passengers inspected within the standard, progress that is being made to expand the utilization of United States citizen by-pass, the number of passengers for whom the standard is not met and the length of their delay, locational breakdown of these statistics and the steps being taken to correct any nonconformity.
(m) Immigration Examinations Fee Account
Notwithstanding any other provisions of law, all adjudication fees as are designated by the Attorney General in regulations shall be deposited as offsetting receipts into a separate account entitled "Immigration Examinations Fee Account" in the Treasury of the United States, whether collected directly by the Attorney General or through clerks of courts: Provided, however, That all fees received by the Attorney General from applicants residing in the Virgin Islands of the United States, and in Guam, under this subsection shall be paid over to the treasury of the Virgin Islands and to the treasury of Guam: Provided further, That fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.
(n) Reimbursement of administrative expenses; transfer of deposits to General Fund of United States Treasury
All deposits into the "Immigration Examinations Fee Account" shall remain available until expended to the Attorney General to reimburse any appropriation the amount paid out of such appropriation for expenses in providing immigration adjudication and naturalization services and the collection, safeguarding and accounting for fees deposited in and funds reimbursed from the "Immigration Examinations Fee Account".
(o) Annual financial reports to Congress
The Attorney General shall prepare and submit annually to Congress statements of financial condition of the "Immigration Examinations Fee Account", including beginning account balance, revenues, withdrawals, and ending account balance and projections for the ensuing fiscal year.
(p) Additional effective dates
The provisions set forth in subsections (m), (n), and (o) of this section apply to adjudication and naturalization services performed and to related fees collected on or after October 1, 1988.
(q) Land Border Inspection Fee Account
(1)(A)(i) Notwithstanding any other provision of law, the Attorney General is authorized to establish, by regulation, not more than 96 projects under which a fee may be charged and collected for inspection services provided at one or more land border points of entry. Such projects may include the establishment of commuter lanes to be made available to qualified United States citizens and aliens, as determined by the Attorney General.
(ii) This subparagraph shall take effect, with respect to any project described in clause (1) 2 that was not authorized to be commenced before September 30, 1996, 30 days after submission of a written plan by the Attorney General detailing the proposed implementation of such project.
(iii) The Attorney General shall prepare and submit on a quarterly basis a status report on each land border inspection project implemented under this subparagraph.
(B) The Attorney General, in consultation with the Secretary of the Treasury, may conduct pilot projects to demonstrate the use of designated ports of entry after working hours through the use of card reading machines or other appropriate technology.
(2) All of the fees collected under this subsection, including receipts for services performed in processing forms I–94, I–94W, and I–68, and other similar applications processed at land border ports of entry, shall be deposited as offsetting receipts in a separate account within the general fund of the Treasury of the United States, to remain available until expended. Such account shall be known as the Land Border Inspection Fee Account.
(3)(A) The Secretary of the Treasury shall refund, at least on a quarterly basis amounts to any appropriations for expenses incurred in providing inspection services at land border points of entry. Such expenses shall include—
(i) the providing of overtime inspection services;
(ii) the expansion, operation and maintenance of information systems for nonimmigrant control;
(iii) the hire of additional permanent and temporary inspectors;
(iv) the minor construction costs associated with the addition of new traffic lanes (with the concurrence of the General Services Administration);
(v) the detection of fraudulent documents used by passengers travelling to the United States;
(vi) providing for the administration of said account.
(B) The amounts required to be refunded from the Land Border Inspection Fee Account for fiscal years 1992 and thereafter shall be refunded in accordance with estimates made in the budget request of the Attorney General for those fiscal years: Provided, That any proposed changes in the amounts designated in said budget requests shall only be made after notification to the Committees on Appropriations of the House of Representatives and the Senate in accordance with section 606 of
(4) The Attorney General will prepare and submit annually to the Congress statements of financial condition of the Land Border Immigration Fee Account, including beginning account balance, revenues, withdrawals, and ending account balance and projection for the ensuing fiscal year.
(r) Breached Bond/Detention Fund
(1) Notwithstanding any other provision of law, there is established in the general fund of the Treasury a separate account which shall be known as the Breached Bond/Detention Fund (in this subsection referred to as the "Fund").
(2) There shall be deposited as offsetting receipts into the Fund all breached cash and surety bonds, in excess of $8,000,000, posted under this chapter which are recovered by the Department of Justice, and amount 3 described in section 1255(i)(3)(b) 4 of this title.
(3) Such amounts as are deposited into the Fund shall remain available until expended and shall be refunded out of the Fund by the Secretary of the Treasury, at least on a quarterly basis, to the Attorney General for the following purposes—
(i) for expenses incurred in the collection of breached bonds, and
(ii) for expenses associated with the detention of illegal aliens.
(4) The amounts required to be refunded from the Fund for fiscal year 1998 and thereafter shall be refunded in accordance with estimates made in the budget request of the President for those fiscal years. Any proposed changes in the amounts designated in such budget requests shall only be made after Congressional reprogramming notification in accordance with the reprogramming guidelines for the applicable fiscal year.
(5) The Attorney General shall prepare and submit annually to the Congress, statements of financial condition of the Fund, including the beginning balance, receipts, refunds to appropriations, transfers to the general fund, and the ending balance.
(6) For fiscal year 1993 only, the Attorney General may transfer up to $1,000,000 from the Immigration User Fee Account to the Fund for initial expenses necessary to enhance collection efforts: Provided, That any such transfers shall be refunded from the Fund back to the Immigration User Fee Account by December 31, 1993.
(s) H–1B Nonimmigrant Petitioner Account
(1) In general
There is established in the general fund of the Treasury a separate account, which shall be known as the "H–1B Nonimmigrant Petitioner Account". Notwithstanding any other section of this subchapter, there shall be deposited as offsetting receipts into the account all fees collected under paragraphs (9) and (11) of
(2) Use of fees for job training
55 percent of amounts deposited into the H–1B Nonimmigrant Petitioner Account shall remain available to the Secretary of Labor until expended for demonstration programs and projects described in
(3) Use of fees for low-income scholarship program
22 percent of the amounts deposited into the H–1B Nonimmigrant Petitioner Account shall remain available to the Director of the National Science Foundation until expended for scholarships described in
(4) National Science Foundation competitive grant program for K–12 math, science and technology education
(A) In general
15 percent of the amounts deposited into the H–1B Nonimmigrant Petitioner Account shall remain available to the Director of the National Science Foundation until expended to carry out a direct or matching grant program to support private-public partnerships in K–12 education.
(B) Types of programs covered
The Director shall award grants to such programs, including those which support the development and implementation of standards-based instructional materials models and related student assessments that enable K–12 students to acquire an understanding of science, mathematics, and technology, as well as to develop critical thinking skills; provide systemic improvement in training K–12 teachers and education for students in science, mathematics, and technology; support the professional development of K–12 math and science teachers in the use of technology in the classroom; stimulate system-wide K–12 reform of science, mathematics, and technology in rural, economically disadvantaged regions of the United States; provide externships and other opportunities for students to increase their appreciation and understanding of science, mathematics, engineering, and technology (including summer institutes sponsored by an institution of higher education for students in grades 7–12 that provide instruction in such fields); involve partnerships of industry, educational institutions, and community organizations to address the educational needs of disadvantaged communities; provide college preparatory support to expose and prepare students for careers in science, mathematics, engineering, and technology; and provide for carrying out systemic reform activities under
(5) Use of fees for duties relating to petitions
4 percent of the amounts deposited into the H–1B Nonimmigrant Petitioner Account shall remain available to the Attorney General until expended to carry out duties under paragraphs (1) and (9) of
(6) Use of fees for application processing and enforcement
For fiscal year 1999, 4 percent of the amounts deposited into the H–1B Nonimmigrant Petitioner Account shall remain available to the Secretary of Labor until expended for decreasing the processing time for applications under
(t) Genealogy Fee
(1) There is hereby established the Genealogy Fee for providing genealogy research and information services. This fee shall be deposited as offsetting collections into the Examinations Fee Account. Fees for such research and information services may be set at a level that will ensure the recovery of the full costs of providing all such services.
(2) The Attorney General will prepare and submit annually to Congress statements of the financial condition of the Genealogy Fee.
(3) Any officer or employee of the Immigration and Naturalization Service shall collect fees prescribed under regulation before disseminating any requested genealogical information.
(u) Premium fee for employment-based petitions and applications
The Attorney General is authorized to establish and collect a premium fee for employment-based petitions and applications. This fee shall be used to provide certain premium-processing services to business customers, and to make infrastructure improvements in the adjudications and customer-service processes. For approval of the benefit applied for, the petitioner/applicant must meet the legal criteria for such benefit. This fee shall be set at $1,000, shall be paid in addition to any normal petition/application fee that may be applicable, and shall be deposited as offsetting collections in the Immigration Examinations Fee Account. The Attorney General may adjust this fee according to the Consumer Price Index.
(June 27, 1952, ch. 477, title II, ch. 9, §286,
Amendment of Section
For termination of amendment by section 107(c) of
References in Text
Subchapter C of
The Federal Advisory Committee Act, referred to in subsec. (k), is
Section 606 of
Amendments
2003—Subsec. (e)(3).
Subsec. (m).
Subsec. (s)(1).
2002—Subsec. (e)(3).
Subsec. (g).
Subsec. (m).
Subsec. (q)(2).
2001—Subsec. (d).
Subsec. (e)(1).
Subsec. (e)(3).
Subsec. (q)(1)(A)(i).
2000—Subsec. (s)(2).
Subsec. (s)(3).
Subsec. (s)(4).
"(A)
"(B)
Subsec. (s)(5).
Subsec. (s)(6).
Subsecs. (t), (u).
1999—Subsec. (q)(1)(A)(ii) to (iv).
1998—Subsec. (e)(1)(C).
Subsec. (s).
1997—Subsec. (r)(2).
Subsec. (r)(3).
Subsec. (r)(4).
Subsec. (s).
1996—Subsec. (a).
Subsec. (h)(1)(A).
Subsec. (h)(1)(B).
Subsec. (h)(2)(A).
Subsec. (h)(2)(A)(iv).
Subsec. (h)(2)(A)(v).
Subsec. (h)(2)(A)(vi).
Subsec. (q)(1).
Subsec. (q)(5).
"(5)(A) The program authorized in this subsection shall terminate on September 30, 1993, unless further authorized by an Act of Congress.
"(B) The provisions set forth in this subsection shall take effect 30 days after submission of a written plan by the Attorney General detailing the proposed implementation of the project specified in paragraph (1).
"(C) If implemented, the Attorney General shall prepare and submit on a quarterly basis, until September 30, 1993, a status report on the land border inspection project."
Subsec. (r)(4), (6).
Subsec. (s).
1994—Subsec. (r).
Subsec. (r)(1).
Subsec. (r)(2).
Subsec. (r)(4).
Subsec. (r)(5).
Subsec. (r)(6).
1993—Subsec. (d).
Subsec. (h)(2)(A)(v), (vi).
1992—Subsec. (r).
1991—Subsec. (e)(1)(D).
Subsec. (f)(3).
Subsec. (h)(1)(A).
Subsec. (m).
Subsec. (n).
Subsec. (o).
Subsec. (p).
Subsec. (q)(2).
Subsec. (q)(3)(A).
Subsec. (q)(5)(B).
1990—Subsec. (e)(1).
Subsec. (f)(3).
Subsec. (g).
Subsec. (h)(1)(A).
Subsec. (l).
Subsec. (m).
Subsec. (q).
1989—Subsec. (n).
1988—Subsec. (a).
Subsecs. (d) to (l).
Subsec. (f)(3).
Subsec. (g).
Subsec. (h)(1)(A).
Subsec. (h)(1)(B).
Subsec. (h)(2)(A).
Subsec. (i).
Subsec. (l).
"(1) The provisions of this section and the amendments made by this section, shall apply with respect to immigration inspection services rendered after November 30, 1986.
"(2) Fees may be charged under subsection (d) of this section only with respect to immigration inspection services rendered in regard to arriving passengers using transportation for which documents or tickets were issued after November 30, 1986."
Subsecs. (m) to (p).
1987—Subsec. (h)(1)(A).
1986—Subsec. (a).
Subsecs. (d) to (l).
1981—Subsecs. (b), (c).
Effective and Termination Dates of 2003 Amendment
Amendment by
Effective Date of 2002 Amendment
Amendment by
Effective Date of 1996 Amendment
Section 124(a)(2) of div. C of
Amendment by section 308(d)(3)(A), (4)(K), (e)(1)(L), (g)(1) of
Amendment by section 376(b) of
Amendment by section 382(b) of
Amendment by section 671(b)(11) of
Effective Date of 1994 Amendment
Section 219(t) of
Effective Date of 1991 Amendment
Section 309(a)(3) of
Effective Date of 1990 Amendment
Section 210(b) of
Effective Date of 1988 Amendment
Amendment by section 4(a)(1), (2)(A) of
Amendment by section 8(f) of
Effective Date of 1986 Amendments
Amendment by section 7(d)(1) of
"(1) The amendments made by subsection (a) [amending this section] shall apply with respect to immigration inspection services rendered after November 30, 1986.
"(2) Fees may be charged under section 286(d) of the Immigration and Nationality Act [
Effective Date of 1981 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Termination of Advisory Committees
Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See section 14 of
Restoration of Provision Regarding Fees to Cover the Full Costs of All Adjudication Services
Reporting Requirement
"The Secretary of Labor and the Director of the National Science Foundation shall—
"(1) track and monitor the performance of programs receiving H–1B Nonimmigrant Fee grant money; and
"(2) not later than one year after the date of enactment of this subsection [Oct. 17, 2000], submit a report to the Committees on the Judiciary of the House of Representatives and the Senate—[sic]
"(A) the tracking system to monitor the performance of programs receiving H–1B grant funding; and
"(B) the number of individuals who have completed training and have entered the high-skill workforce through these programs."
Deposit of Receipts From Increased Charge for Immigrant Visas Caused by Processing Fingerprints
Extension of Land Border Fee Pilot Project
Similar provisions were contained in the following prior appropriations act:
Section Referred to in Other Sections
This section is referred to in
2 So in original. Probably should be clause "(i)".
4 So in original. Probably should be section "1255(i)(3)(B)".
5 So in original. Probably should be section "1154(a)".
§1357. Powers of immigration officers and employees
(a) Powers without warrant
Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;
(2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;
(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States;
(4) to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens, if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States; and
(5) to make arrests—
(A) for any offense against the United States, if the offense is committed in the officer's or employee's presence, or
(B) for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony,
if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest.
Under regulations prescribed by the Attorney General, an officer or employee of the Service may carry a firearm and may execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States. The authority to make arrests under paragraph (5)(B) shall only be effective on and after the date on which the Attorney General publishes final regulations which (i) prescribe the categories of officers and employees of the Service who may use force (including deadly force) and the circumstances under which such force may be used, (ii) establish standards with respect to enforcement activities of the Service, (iii) require that any officer or employee of the Service is not authorized to make arrests under paragraph (5)(B) unless the officer or employee has received certification as having completed a training program which covers such arrests and standards described in clause (ii), and (iv) establish an expedited, internal review process for violations of such standards, which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations.
(b) Administration of oath; taking of evidence
Any officer or employee of the Service designated by the Attorney General, whether individually or as one of a class, shall have power and authority to administer oaths and to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States, or concerning any matter which is material or relevant to the enforcement of this chapter and the administration of the Service; and any person to whom such oath has been administered, (or who has executed an unsworn declaration, certificate, verification, or statement under penalty of perjury as permitted under
(c) Search without warrant
Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.
(d) Detainer of aliens for violation of controlled substances laws
In the case of an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)—
(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States,
(2) expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and of facts concerning the status of the alien, and
(3) requests the Service to determine promptly whether or not to issue a detainer to detain the alien,
the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.
(e) Restriction on warrantless entry in case of outdoor agricultural operations
Notwithstanding any other provision of this section other than paragraph (3) of subsection (a) of this section, an officer or employee of the Service may not enter without the consent of the owner (or agent thereof) or a properly executed warrant onto the premises of a farm or other outdoor agricultural operation for the purpose of interrogating a person believed to be an alien as to the person's right to be or to remain in the United States.
(f) Fingerprinting and photographing of certain aliens
(1) Under regulations of the Attorney General, the Commissioner shall provide for the fingerprinting and photographing of each alien 14 years of age or older against whom a proceeding is commenced under
(2) Such fingerprints and photographs shall be made available to Federal, State, and local law enforcement agencies, upon request.
(g) Performance of immigration officer functions by State officers and employees
(1) Notwithstanding
(2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.
(3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.
(4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written agreement between the Attorney General and the State or subdivision.
(5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision.
(6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee.
(7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of
(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.
(9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.
(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—
(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or
(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
(June 27, 1952, ch. 477, title II, ch. 9, §287,
Amendments
1996—Subsec. (a)(2), (4).
Subsec. (c).
Subsec. (f)(1).
Subsec. (g).
1991—Subsec. (a)(4).
1990—Subsec. (a).
Subsec. (f).
1988—Subsec. (d).
Subsec. (e).
1986—Subsec. (d).
Subsec. (e).
1976—Subsec. (b).
Effective Date of 1996 Amendment
Amendment by section 308(d)(4)(L), (e)(1)(M), (g)(5)(A)(i) of
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by section 2(e) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1358. Local jurisdiction over immigrant stations
The officers in charge of the various immigrant stations shall admit therein the proper State and local officers charged with the enforcement of the laws of the State or Territory of the United States in which any such immigrant station is located in order that such State and local officers may preserve the peace and make arrests for crimes under the laws of the States and Territories. For the purpose of this section the jurisdiction of such State and local officers and of the State and local courts shall extend over such immigrant stations.
(June 27, 1952, ch. 477, title II, ch. 9, §288,
§1359. Application to American Indians born in Canada
Nothing in this subchapter shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.
(June 27, 1952, ch. 477, title II, ch. 9, §289,
Section Referred to in Other Sections
This section is referred to in
§1360. Establishment of central file; information from other departments and agencies
(a) Establishment of central file
There shall be established in the office of the Commissioner, for the use of security and enforcement agencies of the Government of the United States, a central index, which shall contain the names of all aliens heretofore admitted or denied admission to the United States, insofar as such information is available from the existing records of the Service, and the names of all aliens hereafter admitted or denied admission to the United States, the names of their sponsors of record, if any, and such other relevant information as the Attorney General shall require as an aid to the proper enforcement of this chapter.
(b) Information from other departments and agencies
Any information in any records kept by any department or agency of the Government as to the identity and location of aliens in the United States shall be made available to the Service upon request made by the Attorney General to the head of any such department or agency.
(c) Reports on social security account numbers and earnings of aliens not authorized to work
(1) Not later than 3 months after the end of each fiscal year (beginning with fiscal year 1996), the Commissioner of Social Security shall report to the Committees on the Judiciary of the House of Representatives and the Senate on the aggregate quantity of social security account numbers issued to aliens not authorized to be employed, with respect to which, in such fiscal year, earnings were reported to the Social Security Administration.
(2) If earnings are reported on or after January 1, 1997, to the Social Security Administration on a social security account number issued to an alien not authorized to work in the United States, the Commissioner of Social Security shall provide the Attorney General with information regarding the name and address of the alien, the name and address of the person reporting the earnings, and the amount of the earnings. The information shall be provided in an electronic form agreed upon by the Commissioner and the Attorney General.
(d) Certification of search of Service records
A written certification signed by the Attorney General or by any officer of the Service designated by the Attorney General to make such certification, that after diligent search no record or entry of a specified nature is found to exist in the records of the Service, shall be admissible as evidence in any proceeding as evidence that the records of the Service contain no such record or entry, and shall have the same effect as the testimony of a witness given in open court.
(June 27, 1952, ch. 477, title II, ch. 9, §290,
Amendments
1996—Subsec. (a).
Subsec. (c).
1988—Subsec. (c).
Effective Date of 1996 Amendment
Amendment by section 308(d)(4)(M) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Report on Fraudulent Use of Social Security Account Numbers
§1361. Burden of proof upon alien
Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this chapter, and, if an alien, that he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this chapter. In any removal proceeding under part IV of this subchapter against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, but in presenting such proof he shall be entitled to the production of his visa or other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry in the custody of the Service. If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.
(June 27, 1952, ch. 477, title II, ch. 9, §291,
Amendments
1996—
1981—
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1362. Right to counsel
In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.
(June 27, 1952, ch. 477, title II, ch. 9, §292,
Amendments
1996—
Effective Date of 1996 Amendment
Amendment by section 308(d)(4)(O) of
Amendment by section 371(b)(9) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
§1363. Deposit of and interest on cash received to secure immigration bonds
(a) Cash received by the Attorney General as security on an immigration bond shall be deposited in the Treasury of the United States in trust for the obligor on the bond, and shall bear interest payable at a rate determined by the Secretary of the Treasury, except that in no case shall the interest rate exceed 3 per centum per annum. Such interest shall accrue from date of deposit occurring after April 27, 1966, to and including date of withdrawal or date of breach of the immigration bond, whichever occurs first: Provided, That cash received by the Attorney General as security on an immigration bond, and deposited by him in the postal savings system prior to discontinuance of the system, shall accrue interest as provided in this section from the date such cash ceased to accrue interest under the system. Appropriations to the Treasury Department for interest on uninvested funds shall be available for payment of said interest.
(b) The interest accruing on cash received by the Attorney General as security on an immigration bond shall be subject to the same disposition as prescribed for the principal cash, except that interest accruing to the date of breach of the immigration bond shall be paid to the obligor on the bond.
(June 27, 1952, ch. 477, title II, ch. 9, §293, as added
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1363a. Undercover investigation authority
(a) In general
With respect to any undercover investigative operation of the Service which is necessary for the detection and prosecution of crimes against the United States—
(1) sums appropriated for the Service may be used for leasing space within the United States and the territories and possessions of the United States without regard to the following provisions of law:
(A)
(B)
(C)
(D)
(E) section 3324(a) and (b) of title 31,
(F)
(G) subsections (a) and (c) 1 of
(2) sums appropriated for the Service may be used to establish or to acquire proprietary corporations or business entities as part of an undercover operation, and to operate such corporations or business entities on a commercial basis, without regard to the provisions of
(3) sums appropriated for the Service, and the proceeds from the undercover operation, may be deposited in banks or other financial institutions without regard to the provisions of
(4) the proceeds from the undercover operation may be used to offset necessary and reasonable expenses incurred in such operation without regard to the provisions of
The authority set forth in this subsection may be exercised only upon written certification of the Commissioner, in consultation with the Deputy Attorney General, that any action authorized by paragraph (1), (2), (3), or (4) is necessary for the conduct of the undercover operation.
(b) Disposition of proceeds no longer required
As soon as practicable after the proceeds from an undercover investigative operation, carried out under paragraphs (3) and (4) of subsection (a) of this section, are no longer necessary for the conduct of the operation, the proceeds or the balance of the proceeds remaining at the time shall be deposited into the Treasury of the United States as miscellaneous receipts.
(c) Disposition of certain corporations and business entities
If a corporation or business entity established or acquired as part of an undercover operation under paragraph (2) of subsection (a) of this section with a net value of over $50,000 is to be liquidated, sold, or otherwise disposed of, the Service, as much in advance as the Commissioner or Commissioner's designee determines practicable, shall report the circumstances to the Attorney General, the Director of the Office of Management and Budget, and the Comptroller General. The proceeds of the liquidation, sale, or other disposition, after obligations are met, shall be deposited in the Treasury of the United States as miscellaneous receipts.
(d) Financial audits
The Service shall conduct detailed financial audits of closed undercover operations on a quarterly basis and shall report the results of the audits in writing to the Deputy Attorney General.
(June 27, 1952, ch. 477, title II, ch. 9, §294, as added
References in Text
Subsection (c) of
Codification
In subsec. (a)(1)(A), (E), (2) to (4), "
In subsec. (a)(1)(D), "
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
1 See References in Text note below.
§1363b. Repealed. Pub. L. 105–277, div. A, §101(b) [title I, §109(b)], Oct. 21, 1998, 112 Stat. 2681–50 , 2681-67
Section, act June 27, 1952, ch. 477, title II, ch. 9, §295, as added
§1364. Triennial comprehensive report on immigration
(a) Triennial report
The President shall transmit to the Congress, not later than January 1, 1989, and not later than January 1 of every third year thereafter, a comprehensive immigration-impact report.
(b) Details in each report
Each report shall include—
(1) the number and classification of aliens admitted (whether as immediate relatives, special immigrants, refugees, or under the preferences classifications, or as nonimmigrants), paroled, or granted asylum, during the relevant period;
(2) a reasonable estimate of the number of aliens who entered the United States during the period without visas or who became deportable during the period under section 237 of the Immigration and Nationality Act [
(3) a description of the impact of admissions and other entries of immigrants, refugees, asylees, and parolees into the United States during the period on the economy, labor and housing markets, the educational system, social services, foreign policy, environmental quality and resources, the rate, size, and distribution of population growth in the United States, and the impact on specific States and local units of government of high rates of immigration resettlement.
(c) History and projections
The information (referred to in subsection (b) of this section) contained in each report shall be—
(1) described for the preceding three-year period, and
(2) projected for the succeeding five-year period, based on reasonable estimates substantiated by the best available evidence.
(d) Recommendations
The President also may include in such report any appropriate recommendations on changes in numerical limitations or other policies under title II of the Immigration and Nationality Act [
(
References in Text
The Immigration and Nationality Act, referred to in subsec. (d), is act June 27, 1952, ch. 477,
Codification
Section was enacted as part of the Immigration Reform and Control Act of 1986, and not as part of the Immigration and Nationality Act which comprises this chapter.
Amendments
1996—Subsec. (b)(2).
Effective Date of 1996 Amendment
Amendment by
Ex. Ord. No. 12789. Delegation of Reporting Functions Under the Immigration Reform and Control Act of 1986
Ex. Ord. No. 12789, Feb. 10, 1992, 57 F.R. 5225, as amended by Ex. Ord. No. 13286, §32, Feb. 28, 2003, 68 F.R. 10625, provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, including
(b) perform, except for the functions in section 402(3)(A), the functions vested in the President by section 402 of the Reform Act (
(c) perform, insofar as they relate to the initial report described in section 404(b), the functions vested in the President by section 404 of the Reform Act (
(b) perform the functions vested in the President by section 403 of the Reform Act (
(c) perform, insofar as they relate to the second report described in section 404(c), the functions vested in the President by section 404 of the Reform Act (
George Bush.
§1365. Reimbursement of States for costs of incarcerating illegal aliens and certain Cuban nationals
(a) Reimbursement of States
Subject to the amounts provided in advance in appropriation Acts, the Attorney General shall reimburse a State for the costs incurred by the State for the imprisonment of any illegal alien or Cuban national who is convicted of a felony by such State.
(b) Illegal aliens convicted of a felony
An illegal alien referred to in subsection (a) of this section is any alien who is any alien convicted of a felony who is in the United States unlawfully and—
(1) whose most recent entry into the United States was without inspection, or
(2) whose most recent admission to the United States was as a nonimmigrant and—
(A) whose period of authorized stay as a nonimmigrant expired, or
(B) whose unlawful status was known to the Government,
before the date of the commission of the crime for which the alien is convicted.
(c) Marielito Cubans convicted of a felony
A Marielito Cuban convicted of a felony referred to in subsection (a) of this section is a national of Cuba who—
(1) was allowed by the Attorney General to come to the United States in 1980,
(2) after such arrival committed any violation of State or local law for which a term of imprisonment was imposed, and
(3) at the time of such arrival and at the time of such violation was not an alien lawfully admitted to the United States—
(A) for permanent or temporary residence, or
(B) under the terms of an immigrant visa or a nonimmigrant visa issued,
under the laws of the United States.
(d) Authorization of appropriations
There are authorized to be appropriated such sums as are necessary to carry out the purposes of this section.
(e) "State" defined
The term "State" has the meaning given such term in
(
Codification
Section was enacted as part of the Immigration Reform and Control Act of 1986, and not as part of the Immigration and Nationality Act which comprises this chapter.
Regulations
[For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1365a. Integrated entry and exit data system
(a) Requirement
The Attorney General shall implement an integrated entry and exit data system.
(b) Integrated entry and exit data system defined
For purposes of this section, the term "integrated entry and exit data system" means an electronic system that—
(1) provides access to, and integrates, alien arrival and departure data that are—
(A) authorized or required to be created or collected under law;
(B) in an electronic format; and
(C) in a data base of the Department of Justice or the Department of State, including those created or used at ports of entry and at consular offices;
(2) uses available data described in paragraph (1) to produce a report of arriving and departing aliens by country of nationality, classification as an immigrant or nonimmigrant, and date of arrival in, and departure from, the United States;
(3) matches an alien's available arrival data with the alien's available departure data;
(4) assists the Attorney General (and the Secretary of State, to the extent necessary to carry out such Secretary's obligations under immigration law) to identify, through on-line searching procedures, lawfully admitted nonimmigrants who may have remained in the United States beyond the period authorized by the Attorney General; and
(5) otherwise uses available alien arrival and departure data described in paragraph (1) to permit the Attorney General to make the reports required under subsection (e) of this section.
(c) Construction
(1) No additional authority to impose documentary or data collection requirements
Nothing in this section shall be construed to permit the Attorney General or the Secretary of State to impose any new documentary or data collection requirements on any person in order to satisfy the requirements of this section, including—
(A) requirements on any alien for whom the documentary requirements in
(B) requirements that are inconsistent with the North American Free Trade Agreement.
(2) No reduction of authority
Nothing in this section shall be construed to reduce or curtail any authority of the Attorney General or the Secretary of State under any other provision of law.
(d) Deadlines
(1) Airports and seaports
Not later than December 31, 2003, the Attorney General shall implement the integrated entry and exit data system using available alien arrival and departure data described in subsection (b)(1) of this section pertaining to aliens arriving in, or departing from, the United States at an airport or seaport. Such implementation shall include ensuring that such data, when collected or created by an immigration officer at an airport or seaport, are entered into the system and can be accessed by immigration officers at other airports and seaports.
(2) High-traffic land border ports of entry
Not later than December 31, 2004, the Attorney General shall implement the integrated entry and exit data system using the data described in paragraph (1) and available alien arrival and departure data described in subsection (b)(1) of this section pertaining to aliens arriving in, or departing from, the United States at the 50 land border ports of entry determined by the Attorney General to serve the highest numbers of arriving and departing aliens. Such implementation shall include ensuring that such data, when collected or created by an immigration officer at such a port of entry, are entered into the system and can be accessed by immigration officers at airports, seaports, and other such land border ports of entry.
(3) Remaining data
Not later than December 31, 2005, the Attorney General shall fully implement the integrated entry and exit data system using all data described in subsection (b)(1) of this section. Such implementation shall include ensuring that all such data are available to immigration officers at all ports of entry into the United States.
(e) Reports
(1) In general
Not later than December 31 of each year following the commencement of implementation of the integrated entry and exit data system, the Attorney General shall use the system to prepare an annual report to the Committees on the Judiciary of the House of Representatives and of the Senate.
(2) Information
Each report shall include the following information with respect to the preceding fiscal year, and an analysis of that information:
(A) The number of aliens for whom departure data was collected during the reporting period, with an accounting by country of nationality of the departing alien.
(B) The number of departing aliens whose departure data was successfully matched to the alien's arrival data, with an accounting by the alien's country of nationality and by the alien's classification as an immigrant or nonimmigrant.
(C) The number of aliens who arrived pursuant to a nonimmigrant visa, or as a visitor under the visa waiver program under
(D) The number of lawfully admitted nonimmigrants identified as having remained in the United States beyond the period authorized by the Attorney General, with an accounting by the alien's country of nationality.
(f) Authority to provide access to system
(1) In general
Subject to subsection (d) of this section, the Attorney General, in consultation with the Secretary of State, shall determine which officers and employees of the Departments of Justice and State may enter data into, and have access to the data contained in, the integrated entry and exit data system.
(2) Other law enforcement officials
The Attorney General, in the discretion of the Attorney General, may permit other Federal, State, and local law enforcement officials to have access to the data contained in the integrated entry and exit data system for law enforcement purposes.
(g) Use of task force recommendations
The Attorney General shall continuously update and improve the integrated entry and exit data system as technology improves and using the recommendations of the task force established under section 3 of the Immigration and Naturalization Service Data Management Improvement Act of 2000.
(h) Authorization of appropriations
There are authorized to be appropriated to carry out this section such sums as may be necessary for fiscal years 2001 through 2008.
(
References in Text
Immigration law, referred to in subsec. (b)(4), is classified generally to this title. See also
Section 3 of the Immigration and Naturalization Service Data Management Improvement Act of 2000, referred to in subsec. (g), is section 3 of
Codification
Section was formerly set out as a note under
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Amendments
2000—
"(a)
"(1) collect a record of departure for every alien departing the United States and match the records of departure with the record of the alien's arrival in the United States;
"(2) enable the Attorney General to identify, through on-line searching procedures, lawfully admitted nonimmigrants who remain in the United States beyond the period authorized by the Attorney General; and
"(3) not significantly disrupt trade, tourism, or other legitimate cross-border traffic at land border ports of entry.
"(b)
"(1)
"(2)
"(A) The number of departure records collected, with an accounting by country of nationality of the departing alien.
"(B) The number of departure records that were successfully matched to records of the alien's prior arrival in the United States, with an accounting by the alien's country of nationality and by the alien's classification as an immigrant or nonimmigrant.
"(C) The number of aliens who arrived as nonimmigrants, or as a visitor under the visa waiver program under
"(c)
1998—Subsec. (a).
Subsec. (a)(3).
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Visa Integrity and Security
"(a)
"(1)
"(A) the Attorney General, in consultation with the Secretary of State, should fully implement the integrated entry and exit data system for airports, seaports, and land border ports of entry, as specified in section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
"(B) the Attorney General, in consultation with the Secretary of State, the Secretary of Commerce, the Secretary of the Treasury, and the Office of Homeland Security, should immediately begin establishing the Integrated Entry and Exit Data System Task Force, as described in section 3 of the Immigration and Naturalization Service Data Management Improvement Act of 2000 (
"(2)
"(b)
"(1) the utilization of biometric technology; and
"(2) the development of tamper-resistant documents readable at ports of entry.
"(c)
Task Force
"(a)
"(b)
"(1)
"(2)
"(A) representatives of Federal, State, and local agencies with an interest in the duties of the Task Force, including representatives of agencies with an interest in—
"(i) immigration and naturalization;
"(ii) travel and tourism;
"(iii) transportation;
"(iv) trade;
"(v) law enforcement;
"(vi) national security; or
"(vii) the environment; and
"(B) private sector representatives of affected industries and groups.
"(3)
"(4)
"(A)
"(B)
"(c)
"(1) How the Attorney General can efficiently and effectively carry out section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
"(2) How the United States can improve the flow of traffic at airports, seaports, and land border ports of entry through—
"(A) enhancing systems for data collection and data sharing, including the integrated entry and exit data system described in section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
"(B) increasing cooperation between the public and private sectors;
"(C) increasing cooperation among Federal agencies and among Federal and State agencies; and
"(D) modifying information technology systems while taking into account the different data systems, infrastructure, and processing procedures of airports, seaports, and land border ports of entry.
"(3) The cost of implementing each of its recommendations.
"(d)
"(1)
"(2)
"(3)
"(4)
"(5)
"(e)
"(f)
"(g)
"(1)
"(2)
"(h)
"(1)
"(A) to implement the recommendations of the Task Force; and
"(B) to obtain authorization for the appropriation of funds, the expenditure of receipts, or the reprogramming of existing funds to implement such recommendations.
"(2)
"(i)
"(j)
Section Referred to in Other Sections
This section is referred to in
§1366. Annual report on criminal aliens
Not later than 12 months after September 30, 1996, and annually thereafter, the Attorney General shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate a report detailing—
(1) the number of illegal aliens incarcerated in Federal and State prisons for having committed felonies, stating the number incarcerated for each type of offense;
(2) the number of illegal aliens convicted of felonies in any Federal or State court, but not sentenced to incarceration, in the year before the report was submitted, stating the number convicted for each type of offense;
(3) programs and plans underway in the Department of Justice to ensure the prompt removal from the United States of criminal aliens subject to removal; and
(4) methods for identifying and preventing the unlawful reentry of aliens who have been convicted of criminal offenses in the United States and removed from the United States.
(
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1367. Penalties for disclosure of information
(a) In general
Except as provided in subsection (b) of this section, in no case may the Attorney General, or any other official or employee of the Department of Justice (including any bureau or agency of such Department)—
(1) make an adverse determination of admissibility or deportability of an alien under the Immigration and Nationality Act [
(A) a spouse or parent who has battered the alien or subjected the alien to extreme cruelty,
(B) a member of the spouse's or parent's family residing in the same household as the alien who has battered the alien or subjected the alien to extreme cruelty when the spouse or parent consented to or acquiesced in such battery or cruelty,
(C) a spouse or parent who has battered the alien's child or subjected the alien's child to extreme cruelty (without the active participation of the alien in the battery or extreme cruelty),
(D) a member of the spouse's or parent's family residing in the same household as the alien who has battered the alien's child or subjected the alien's child to extreme cruelty when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, or
(E) in the case of an alien applying for status under section 101(a)(15)(U) of the Immigration and Nationality Act [
unless the alien has been convicted of a crime or crimes listed in section 241(a)(2) of the Immigration and Nationality Act [
(2) permit use by or disclosure to anyone (other than a sworn officer or employee of the Department, or bureau or agency thereof, for legitimate Department, bureau, or agency purposes) of any information which relates to an alien who is the beneficiary of an application for relief under clause (iii) or (iv) of section 204(a)(1)(A), clause (ii) or (iii) of section 204(a)(1)(B), section 216(c)(4)(C), section 101(a)(15)(U), or section 240A(a)(3) 1 of such Act [
The limitation under paragraph (2) ends when the application for relief is denied and all opportunities for appeal of the denial have been exhausted.
(b) Exceptions
(1) The Attorney General may provide, in the Attorney General's discretion, for the disclosure of information in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under
(2) The Attorney General may provide in the discretion of the Attorney General for the disclosure of information to law enforcement officials to be used solely for a legitimate law enforcement purpose.
(3) Subsection (a) of this section shall not be construed as preventing disclosure of information in connection with judicial review of a determination in a manner that protects the confidentiality of such information.
(4) Subsection (a)(2) of this section shall not apply if all the battered individuals in the case are adults and they have all waived the restrictions of such subsection.
(5) The Attorney General is authorized to disclose information, to Federal, State, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits pursuant to
(c) Penalties for violations
Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more than $5,000 for each such violation.
(
References in Text
The Immigration and Nationality Act, referred to in subsec. (a)(1), is act June 27, 1952, ch. 477,
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Section is comprised of section 384 of div. C of
Amendments
2000—Subsec. (a)(1)(E).
Subsec. (a)(2).
1997—Subsec. (b)(5).
1996—Subsec. (a)(2).
Effective Date of 1997 Amendment
Section 5582 of title V of
Effective Date of 1996 Amendment
Amendment by section 308(g)(8)(D) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
1 So in original. Probably should be section "240A(b)(2)".
§1368. Increase in INS detention facilities; report on detention space
(a) Increase in detention facilities
Subject to the availability of appropriations, the Attorney General shall provide for an increase in the detention facilities of the Immigration and Naturalization Service to at least 9,000 beds before the end of fiscal year 1997.
(b) Report on detention space
(1) In general
Not later than 6 months after September 30, 1996, and every 6 months thereafter, the Attorney General shall submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate estimating the amount of detention space that will be required, during the fiscal year in which the report is submitted and the succeeding fiscal year, to detain—
(A) all aliens subject to detention under
(B) all inadmissible or deportable aliens subject to proceedings under
(C) other inadmissible or deportable aliens in accordance with the priorities established by the Attorney General.
(2) Estimate of number of aliens released into the community
(A) Criminal aliens
(i) In general
The first report submitted under paragraph (1) shall include an estimate of the number of criminal aliens who, in each of the 3 fiscal years concluded prior to the date of the report—
(I) were released from detention facilities of the Immigration and Naturalization Service (whether operated directly by the Service or through contract with other persons or agencies); or
(II) were not taken into custody or detention by the Service upon completion of their incarceration.
(ii) Aliens convicted of aggravated felonies
The estimate under clause (i) shall estimate separately, with respect to each year described in such clause, the number of criminal aliens described in such clause who were convicted of an aggravated felony.
(B) All inadmissible or deportable aliens
The first report submitted under paragraph (1) shall also estimate the number of inadmissible or deportable aliens who were released into the community due to a lack of detention facilities in each of the 3 fiscal years concluded prior to the date of the report notwithstanding circumstances that the Attorney General believed justified detention (for example, a significant probability that the released alien would not appear, as agreed, at subsequent exclusion or deportation proceedings).
(C) Subsequent reports
Each report under paragraph (1) following the first such report shall include the estimates under subparagraphs (A) and (B), made with respect to the 6-month period immediately preceding the date of the submission of the report.
(
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Amendments
1996—Subsec. (b).
Effective Date of 1996 Amendment
Amendment by section 308(g)(10)(G) of
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1369. Treatment of expenses subject to emergency medical services exception
(a) In general
Subject to such amounts as are provided in advance in appropriation Acts, each State or political subdivision of a State that provides medical assistance for care and treatment of an emergency medical condition (as defined in subsection (d) of this section) through a public hospital or other public facility (including a nonprofit hospital that is eligible for an additional payment adjustment under
(b) Confirmation of immigration status required
No payment shall be made under this section with respect to services furnished to an individual unless the immigration status of the individual has been verified through appropriate procedures established by the Secretary of Health and Human Services and the Attorney General.
(c) Administration
This section shall be administered by the Attorney General, in consultation with the Secretary of Health and Human Services.
(d) "Emergency medical condition" defined
For purposes of this section, the term "emergency medical condition" means a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—
(1) placing the patient's health in serious jeopardy,
(2) serious impairment to bodily functions, or
(3) serious dysfunction of any bodily organ or part.
(e) Effective date
Subsection (a) of this section shall apply to medical assistance for care and treatment of an emergency medical condition furnished on or after January 1, 1997.
(
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1370. Reimbursement of States and localities for emergency ambulance services
Subject to the availability of appropriations, the Attorney General shall fully reimburse States and political subdivisions of States for costs incurred by such a State or subdivision for emergency ambulance services provided to any alien who—
(1) is injured while crossing a land or sea border of the United States without inspection or at any time or place other than 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.
(
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1371. Reports
Not later than 180 days after the end of each fiscal year, the Attorney General shall submit a report to the Inspector General of the Department of Justice and the Committees on the Judiciary of the House of Representatives and of the Senate describing the following:
(1) Public charge deportations
The number of aliens deported on public charge grounds under section 1227(a)(5) 1 of this title during the previous fiscal year.
(2) Indigent sponsors
The number of determinations made under
(3) Reimbursement actions
The number of actions brought, and the amount of each action, for reimbursement under
(
References in Text
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
1 See References in Text note below.
§1372. Program to collect information relating to nonimmigrant foreign students and other exchange program participants
(a) In general
(1) Program
The Attorney General, in consultation with the Secretary of State and the Secretary of Education, shall develop and conduct a program to collect from approved institutions of higher education, other approved educational institutions, and designated exchange visitor programs in the United States the information described in subsection (c) of this section with respect to aliens who—
(A) have the status, or are applying for the status, of nonimmigrants under subparagraph (F), (J), or (M) of
(B) are nationals of the countries designated under subsection (b) of this section.
(2) Deadline
The program shall commence not later than January 1, 1998.
(3) Aliens for whom a visa is required
The Attorney General, in consultation with the Secretary of State, shall establish an electronic means to monitor and verify—
(A) the issuance of documentation of acceptance of a foreign student by an approved institution of higher education or other approved educational institution, or of an exchange visitor program participant by a designated exchange visitor program;
(B) the transmittal of the documentation referred to in subparagraph (A) to the Department of State for use by the Bureau of Consular Affairs;
(C) the issuance of a visa to a foreign student or an exchange visitor program participant;
(D) the admission into the United States of the foreign student or exchange visitor program participant;
(E) the notification to an approved institution of higher education, other approved educational institution, or exchange visitor program sponsor that the foreign student or exchange visitor participant has been admitted into the United States;
(F) the registration and enrollment of that foreign student in such approved institution of higher education or other approved educational institution, or the participation of that exchange visitor in such designated exchange visitor program, as the case may be; and
(G) any other relevant act by the foreign student or exchange visitor program participant, including a changing of school or designated exchange visitor program and any termination of studies or participation in a designated exchange visitor program.
(4) Reporting requirements
Not later than 30 days after the deadline for registering for classes for an academic term of an approved institution of higher education or other approved educational institution for which documentation is issued for an alien as described in paragraph (3)(A), or the scheduled commencement of participation by an alien in a designated exchange visitor program, as the case may be, the institution or program, respectively, shall report to the Immigration and Naturalization Service any failure of the alien to enroll or to commence participation.
(b) Covered countries
The Attorney General, in consultation with the Secretary of State, shall designate countries for purposes of subsection (a)(1)(B) of this section. The Attorney General shall initially designate not less than 5 countries and may designate additional countries at any time while the program is being conducted.
(c) Information to be collected
(1) In general
The information for collection under subsection (a) of this section with respect to an alien consists of—
(A) the identity and current address in the United States of the alien;
(B) the nonimmigrant classification of the alien and the date on which a visa under the classification was issued or extended or the date on which a change to such classification was approved by the Attorney General;
(C) in the case of a student at an approved institution of higher education, or other approved educational institution,,1 the current academic status of the alien, including whether the alien is maintaining status as a full-time student or, in the case of a participant in a designated exchange visitor program, whether the alien is satisfying the terms and conditions of such program;
(D) in the case of a student at an approved institution of higher education, or other approved educational institution,,1 any disciplinary action taken by the institution against the alien as a result of the alien's being convicted of a crime or, in the case of a participant in a designated exchange visitor program, any change in the alien's participation as a result of the alien's being convicted of a crime; and 2
(E) the date of entry and port of entry;
(F) the date of the alien's enrollment in an approved institution of higher education, other approved educational institution, or designated exchange visitor program in the United States;
(G) the degree program, if applicable, and field of study; and
(H) the date of the alien's termination of enrollment and the reason for such termination (including graduation, disciplinary action or other dismissal, and failure to re-enroll).
(2) FERPA
The Family Educational Rights and Privacy Act of 1974 [
(3) Electronic collection
The information described in paragraph (1) shall be collected electronically, where practicable.
(4) Computer software
(A) Collecting institutions
To the extent practicable, the Attorney General shall design the program in a manner that permits approved institutions of higher education, other approved educational institutions, and designated exchange visitor programs to use existing software for the collection, storage, and data processing of information described in paragraph (1).
(B) Attorney General
To the extent practicable, the Attorney General shall use or enhance existing software for the collection, storage, and data processing of information described in paragraph (1).
(5) Reporting requirements
The Attorney General shall prescribe by regulation reporting requirements by taking into account the curriculum calendar of the approved institution of higher education, other approved educational institution, or exchange visitor program.
(d) Participation by institutions of higher education and exchange visitor programs
(1) Condition
The information described in subsection (c) of this section shall be provided by institutions of higher education, other approved educational institutions, or exchange visitor programs as a condition of—
(A) in the case of an approved institution of higher education, or other approved educational institution,,1 the continued approval of the institution under subparagraph (F) or (M) of
(B) in the case of an approved institution of higher education or a designated exchange visitor program, the granting of authority to issue documents to an alien demonstrating the alien's eligibility for a visa under subparagraph (F), (J), or (M) of
(2) Effect of failure to provide information
If an approved institution of higher education, other approved educational institution, or a designated exchange visitor program fails to provide the specified information, such approvals and such issuance of visas shall be revoked or denied.
(e) Funding
(1) In general
Beginning on April 1, 1997, the Attorney General shall impose on, and collect from, each alien described in paragraph (3), with respect to whom the institution or program is required by subsection (a) of this section to collect information, a fee established by the Attorney General under paragraph (4) at a time prior to the alien being classified under subparagraph (F), (J), or (M) of
(2) Remittance
The fees collected under paragraph (1) shall be remitted by the alien pursuant to a schedule established by the Attorney General for immediate deposit and availability as described under
(3) Aliens described
An alien referred to in paragraph (1) is an alien who seeks nonimmigrant status under subparagraph (F), (J), or (M) of
(4) Amount and use of fees
(A) Establishment of amount
The Attorney General shall establish the amount of the fee to be imposed on, and collected from, an alien under paragraph (1). Except as provided in subsection (g)(2) of this section, the fee imposed on any individual may not exceed $100, except that, in the case of an alien admitted under
(B) Use
Fees collected under paragraph (1) shall be deposited as offsetting receipts into the Immigration Examinations Fee Account (established under
(5) Proof of payment
The alien shall present proof of payment of the fee before the granting of—
(A) a visa under
(B) change of nonimmigrant classification under
(6) Implementation
The provisions of
(f) Joint report
Not later than 4 years after the commencement of the program established under subsection (a) of this section, the Attorney General, the Secretary of State, and the Secretary of Education shall jointly submit to the Committees on the Judiciary of the Senate and the House of Representatives a report on the operations of the program and the feasibility of expanding the program to cover the nationals of all countries.
(g) Worldwide applicability of program
(1) Expansion of program
Not later than 12 months after the submission of the report required by subsection (f) of this section, the Attorney General, in consultation with the Secretary of State and the Secretary of Education, shall commence expansion of the program to cover the nationals of all countries.
(2) Revision of fee
After the program has been expanded, as provided in paragraph (1), the Attorney General may, on a periodic basis, revise the amount of the fee imposed and collected under subsection (e) of this section in order to take into account changes in the cost of carrying out the program.
(h) Definitions
As used in this section:
(1) Approved institution of higher education
The term "approved institution of higher education" means a college or university approved by the Attorney General, in consultation with the Secretary of Education, under subparagraph (F), (J), or (M) of
(2) Designated exchange visitor program
The term "designated exchange visitor program" means a program that has been—
(A) designated by the Secretary of State for purposes of
(B) selected by the Attorney General for purposes of the program under this section.
(3) Other approved educational institution
The term "other approved educational institution" includes any air flight school, language training school, or vocational school, approved by the Attorney General, in consultation with the Secretary of Education and the Secretary of State, under subparagraph (F), (J), or (M) of
(
References in Text
The Family Educational Rights and Privacy Act of 1974, referred to in subsec. (c)(2), is section 513 of
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Amendments
2002—Subsec. (a)(3), (4).
Subsec. (c)(1)(E) to (H).
Subsec. (c)(5).
2001—Subsec. (a)(1).
Subsec. (c)(1)(C), (D).
Subsec. (c)(4)(A).
Subsec. (d)(1).
Subsec. (d)(1)(A).
Subsec. (d)(2).
Subsec. (e)(1), (2).
Subsec. (h)(3).
2000—Subsec. (d)(1).
Subsec. (e)(1).
"(A) when the alien first registers with the institution or program after entering the United States; or
"(B) in a case where a registration under subparagraph (A) does not exist, when the alien first commences activities in the United States with the institution or program."
Subsec. (e)(2).
Subsec. (e)(3).
Subsec. (e)(4)(A).
Subsec. (e)(4)(B).
Subsec. (e)(5), (6).
Subsec. (g)(1).
"(A)
"(B)
Subsec. (h)(2)(A).
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Foreign Student Monitoring Program
"(a)
"(b)
Section Referred to in Other Sections
This section is referred to in
2 So in original. The word "and" probably should not appear.
3 So in original. See 2000 amendment notes below.
§1373. Communication between government agencies and the Immigration and Naturalization Service
(a) In general
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional authority of government entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
(
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1374. Information regarding female genital mutilation
(a) Provision of information regarding female genital mutilation
The Immigration and Naturalization Service (in cooperation with the Department of State) shall make available for all aliens who are issued immigrant or nonimmigrant visas, prior to or at the time of entry into the United States, the following information:
(1) Information on the severe harm to physical and psychological health caused by female genital mutilation which is compiled and presented in a manner which is limited to the practice itself and respectful to the cultural values of the societies in which such practice takes place.
(2) Information concerning potential legal consequences in the United States for (A) performing female genital mutilation, or (B) allowing a child under his or her care to be subjected to female genital mutilation, under criminal or child protection statutes or as a form of child abuse.
(b) Limitation
In consultation with the Secretary of State, the Commissioner of Immigration and Naturalization shall identify those countries in which female genital mutilation is commonly practiced and, to the extent practicable, limit the provision of information under subsection (a) of this section to aliens from such countries.
(c) "Female genital mutilation" defined
For purposes of this section, the term "female genital mutilation" means the removal or infibulation (or both) of the whole or part of the clitoris, the labia minora, or labia majora.
(
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1375. Mail-order bride business
(a) Findings
The Congress finds as follows:
(1) There is a substantial "mail-order bride" business in the United States. With approximately 200 companies in the United States, an estimated 2,000 to 3,500 men in the United States find wives through mail-order bride catalogs each year. However, there are no official statistics 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 United States law.
(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 percent. It is unclear what percentage of these marriage fraud cases originate as mail-order marriages.
(b) Information dissemination
(1) Requirement
Each international matchmaking organization doing business in the United States shall disseminate to recruits, upon recruitment, such immigration and naturalization information as the Immigration and Naturalization Service deems appropriate, in the recruit's native language, including information regarding conditional permanent residence status and the battered spouse waiver under such status, permanent resident status, marriage fraud penalties, the unregulated nature of the business engaged in by such organizations, and the study required under subsection (c) of this section.
(2) Civil penalty
(A) Violation
Any international matchmaking organization that the Attorney General determines has violated this subsection shall be subject, in addition to any other penalties that may be prescribed by law, to a civil money penalty of not more than $20,000 for each such violation.
(B) Procedures for imposition of penalty
Any penalty under subparagraph (A) may be imposed only after notice and opportunity for an agency hearing on the record in accordance with
(c) Study
The Attorney General, in consultation with the Commissioner of Immigration and Naturalization and the Director of the Violence Against Women Initiative of the Department of Justice, shall conduct a study of mail-order marriages to determine, among other things—
(1) the number of such marriages;
(2) the extent of marriage fraud in such marriages, including an estimate of the extent of marriage fraud arising from the services provided by international matchmaking organizations;
(3) the extent to which mail-order spouses utilize section 1254a(a)(3) 1 of this title (providing for suspension of deportation in certain cases involving abuse), or
(4) the extent of domestic abuse in mail-order marriages; and
(5) the need for continued or expanded regulation and education to implement the objectives of the Violence Against Women Act of 1994 and the Immigration Marriage Fraud Amendments of 1986 with respect to mail-order marriages.
(d) Report
Not later than 1 year after September 30, 1996, the Attorney General shall submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate setting forth the results of the study conducted under subsection (c) of this section.
(e) Definitions
As used in this section:
(1) International matchmaking organization
(A) In general
The term "international matchmaking organization" means a corporation, partnership, business, or other 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, matrimonial, or social referral services to nonresident noncitizens, by—
(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.
(B) Exception
Such term does not include a traditional matchmaking organization of a religious nature that otherwise operates in compliance with the laws of the countries of the recruits of such organization and the laws of the United States.
(2) Recruit
The term "recruit" means a noncitizen, nonresident person, recruited by the international matchmaking organization for the purpose of providing dating, matrimonial, or social referral services to United States citizens or aliens lawfully admitted for permanent residence.
(
References in Text
The Violence Against Women Act of 1994, referred to in subsec. (c)(5), is title IV of
The Immigration Marriage Fraud Amendments of 1986, referred to in subsec. (c)(5), is
Codification
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
1 So in original. Probably should be section "1229b(b)(2)".
§1376. Data on nonimmigrant overstay rates
(a) Collection of data
Not later than the date that is 180 days after April 27, 1998, the Attorney General shall implement a program to collect data, for each fiscal year, regarding the total number of aliens within each of the classes of nonimmigrant aliens described in
(b) Annual report
Not later than June 30, 1999, and not later than June 30 of each year thereafter, the Attorney General shall submit an annual report to the Congress providing numerical estimates, for each country for the preceding fiscal year, of the number of aliens from the country who are described in subsection (a) of this section.
(
Codification
Section was not enacted as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1377. Collection of data on detained asylum seekers
(a) In general
The Attorney General shall regularly collect data on a nation-wide 1 basis with respect to asylum seekers in detention in the United States, including the following information:
(1) The number of detainees.
(2) An identification of the countries of origin of the detainees.
(3) The percentage of each gender within the total number of detainees.
(4) The number of detainees listed by each year of age of the detainees.
(5) The location of each detainee by detention facility.
(6) With respect to each facility where detainees are held, whether the facility is also used to detain criminals and whether any of the detainees are held in the same cells as criminals.
(7) The number and frequency of the transfers of detainees between detention facilities.
(8) The average length of detention and the number of detainees by category of the length of detention.
(9) The rate of release from detention of detainees for each district of the Immigration and Naturalization Service.
(10) A description of the disposition of cases.
(b) Annual reports
Beginning October 1, 1999, and not later than October 1 of each year thereafter, the Attorney General shall submit to the Committee on the Judiciary of each House of Congress a report setting forth the data collected under subsection (a) of this section for the fiscal year ending September 30 of that year.
(c) Availability to public
Copies of the data collected under subsection (a) of this section shall be made available to members of the public upon request pursuant to such regulations as the Attorney General shall prescribe.
(
Codification
Section was enacted as part of the Haitian Refugee Immigration Fairness Act of 1998, and also as part of the Treasury and General Government Appropriations Act, 1999, and the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "nationwide".
§1378. Collection of data on other detained aliens
(a) In general
The Attorney General shall regularly collect data on a nationwide basis on aliens being detained in the United States by the Immigration and Naturalization Service other than the aliens described in
(1) The number of detainees who are criminal aliens and the number of detainees who are noncriminal aliens who are not seeking asylum.
(2) An identification of the ages, gender, and countries of origin of detainees within each category described in paragraph (1).
(3) The types of facilities, whether facilities of the Immigration and Naturalization Service or other Federal, State, or local facilities, in which each of the categories of detainees described in paragraph (1) are held.
(b) Length of detention, transfers, and dispositions
With respect to detainees who are criminal aliens and detainees who are noncriminal aliens who are not seeking asylum, the Attorney General shall also collect data concerning—
(1) the number and frequency of transfers between detention facilities for each category of detainee;
(2) the average length of detention of each category of detainee;
(3) for each category of detainee, the number of detainees who have been detained for the same length of time, in 3-month increments;
(4) for each category of detainee, the rate of release from detention for each district of the Immigration and Naturalization Service; and
(5) for each category of detainee, the disposition of detention, including whether detention ended due to deportation, release on parole, or any other release.
(c) Criminal aliens
With respect to criminal aliens, the Attorney General shall also collect data concerning—
(1) the number of criminal aliens apprehended under the immigration laws and not detained by the Attorney General; and
(2) a list of crimes committed by criminal aliens after the decision was made not to detain them, to the extent this information can be derived by cross-checking the list of criminal aliens not detained with other databases accessible to the Attorney General.
(d) Annual reports
Beginning on October 1, 1999, and not later than October 1 of each year thereafter, the Attorney General shall submit to the Committee on the Judiciary of each House of Congress a report setting forth the data collected under subsections (a), (b), and (c) of this section for the fiscal year ending September 30 of that year.
(e) Availability to public
Copies of the data collected under subsections (a), (b), and (c) of this section shall be made available to members of the public upon request pursuant to such regulations as the Attorney General shall prescribe.
(
Codification
Section was enacted as part of the Haitian Refugee Immigration Fairness Act of 1998, and also as part of the Treasury and General Government Appropriations Act, 1999, and the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, and not as part of the Immigration and Nationality Act which comprises this chapter.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under
§1379. Technology standard to confirm identity
(1) In general
The Attorney General and the Secretary of State jointly, through the National Institute of Standards and Technology (NIST), and in consultation with the Secretary of the Treasury and other Federal law enforcement and intelligence agencies the Attorney General or Secretary of State deems appropriate and in consultation with Congress, shall within 15 months after October 26, 2001, develop and certify a technology standard, including appropriate biometric identifier standards, that can be used to verify the identity of persons applying for a United States visa or such persons seeking to enter the United States pursuant to a visa for the purposes of conducting background checks, confirming identity, and ensuring that a person has not received a visa under a different name or such person seeking to enter the United States pursuant to a visa.
(2) Interoperable
The technology standard developed pursuant to paragraph (1), shall be the technological basis for a cross-agency, cross-platform electronic system that is a cost-effective, efficient, fully interoperable means to share law enforcement and intelligence information necessary to confirm the identity of such persons applying for a United States visa or such person seeking to enter the United States pursuant to a visa.
(3) Accessible
The electronic system described in paragraph (2), once implemented, shall be readily and easily accessible to—
(A) all consular officers responsible for the issuance of visas;
(B) all Federal inspection agents at all United States border inspection points; and
(C) all law enforcement and intelligence officers as determined by regulation to be responsible for investigation or identification of aliens admitted to the United States pursuant to a visa.
(4) Report
Not later than one year after October 26, 2001, and every 2 years thereafter, the Attorney General and the Secretary of State shall jointly, in consultation with the Secretary of Treasury, report to Congress describing the development, implementation, efficacy, and privacy implications of the technology standard and electronic database system described in this section.
(5) Funding
There is authorized to be appropriated to the Secretary of State, the Attorney General, and the Director of the National Institute of Standards and Technology such sums as may be necessary to carry out the provisions of this section.
(
Codification
Section was enacted as part of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, and not as part of the Immigration and Nationality Act which comprises this chapter.
Amendments
2002—Par. (1).
Par. (2).
Par. (4).
Report on the Integrated Automated Fingerprint Identification System for Ports of Entry and Overseas Consular Posts
"(a)
"(b)
Section Referred to in Other Sections
This section is referred to in