(III)(a) has critical skills and experience with such alien which are not of a general nature and which cannot be performed by other individuals, or
(b) in the case of a motion picture or television production, has skills and experience with such alien which are not of a general nature and which are critical either based on a pre-existing long-standing working relationship or, with respect to the specific production, because significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production, and
Act 101(a)15P
(P) an alien having a foreign residence which the alien has no intention of abandoning who:
(i) (a) is described in section 214(c)(4)(A) (relating to athletes), or
(b) is described in section 214(c)(4)(B) (relating to entertainment groups);
(ii)(I) performs as an artist or entertainer, individually or as part of a group, or is an integral part of the performance of such a group, and
(II) seeks to enter the United States temporarily and solely for the purpose of performing as such an artist or entertainer or with such a group under a reciprocal exchange program which is between an organization or organizations in the United States and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers;
(iii)(I) performs as an artist or entertainer, individually or as part of a group, or is an integral part of the performance of such a group, and
(II) seeks to enter the United States temporarily and solely to perform, teach, or coach as such an artist or entertainer or with such a group under a commercial or noncommercial program that is culturally unique; or
(iv) is the spouse or child of an alien described in clause (i), (ii), or (iii) and is accompanying, or following to join, the alien;
(Q) 4a(i) an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily (for a period not to exceed 15 months) to the United States as a participant in an international cultural exchange program approved by the Secretary of Homeland Security 4ab for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien’s nationality and who will be employed under the same wages and working conditions as domestic workers; 4a or
(ii) (I) an alien citizen of the United Kingdom or the Republic of Ireland, 21 to 35 years of age, unemployed for not less than 12 months, and having a residence for not less than 18 months in Northern Ireland 4ab1, or the counties of Louth, Monaghan, Cavan, Leitrim, Sligo, and Donegal within the Republic of Ireland, which the alien has no intention of abandoning who is coming temporarily (for a period not to exceed 24 months) 4ab1 to the United States as a participant in a cultural and training program approved by the Secretary of State and the Secretary of Homeland Security 4/ab under section 2(a) of the Irish Peace Process Cultural and Training Program Act of 1998 for the purpose of providing practical training, employment, and the experience of coexistence and conflict resolution in a diverse society, and (II) the alien spouse and minor children of any such alien if accompanying the alien or following to join the alien;
(R) an alien, and the spouse and children of the alien if accompanying or following to join the alien, who-
(i) for the 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; and
(ii) seeks to enter the United States for a period not to exceed 5 years to perform the work described in subclause (I), (II), or (III) of paragraph (27)(C)(ii); 4aa
(S) subject to section 214(k), an alien-
(i) who the Attorney General determines-
(I) is in possession of critical reliable information concerning a criminal organization or enterprise;
(II) is willing to supply or has supplied such information to Federal or State court; and
(III) whose presence in the United States the Attorney General determines is essential to the success of an authorized criminal investigation or the successful prosecution of an individual involved in the criminal organization or enterprise; or
(ii) who the Secretary of State and the Attorney General jointly determine-
(I) is in possession of critical reliable information concerning a terrorist organization, enterprise, or operation;
(II) is willing to supply or has supplied such information to Federal law enforcement authorities or a Federal court;
(III) will be or has been placed in danger as a result of providing such information; and
(IV) is eligible to receive a reward under section 36(a) of the State Department Basic Authorities Act of 1956, and, if the Attorney General (or with respect to clause (ii), the Secretary of State and the Attorney General jointly) considers it to be appropriate, the spouse, married and unmarried sons and daughters, and parents of an alien described in clause (i) or (ii) if accompanying, or following to join, the alien; 4aa
(T) (i) subject to section 214(o), 4aa an alien who the 4ab2 Secretary of Homeland Security, or in the case of subclause (III)(aa) the Secretary of Homeland Security, in consultation with the Attorney General 4ab3 determines–
(I) is or has been a victim of a severe form of trafficking in persons, as defined in section 103 of the Trafficking Victims Protection Act of 2000; 4ab3
(II) is physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry thereto, on account of such trafficking, including physical presence on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking; 4ab3
(III)(aa) has complied with any reasonable request for assistance in the Federal, State, or local 4ab2 investigation or prosecution of acts of trafficking 4ab2 or the investigation of crime where acts of trafficking are at least one central reason for the commission of that crime; 4ab3
(bb) 4ab3 in consultation with the Attorney General, as appropriate, is unable to cooperate with a request described in item (aa) due to physical or psychological trauma; or
(cc) 4ab3 has not attained 18 years of age4aaa; and 4ab3
(IV) the alien would suffer extreme hardship involving unusual and severe harm upon removal; 4ab2
(ii) 4aaa4aa 4ab2 if accompanying, or following to join, the alien described in clause (i)–
(I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; 4ab3
(II) in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien; and
(III) any parent or unmarried sibling under 18 years of age of an alien described in subclause (I) or (II) who the Secretary of Homeland Security, in consultation with the law enforcement officer investigating a severe form of trafficking, determines faces a present danger of retaliation as a result of the alien’s escape from the severe form of trafficking or cooperation with law enforcement.
(iii) [Removed] 4ab3 4ab2
(U) 4aa(i) subject to section 214(p), an alien who files a petition for status under this subparagraph, if the 4aa1Secretary of Homeland Security determines that–
(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);
(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);
(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and
(IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States;
(ii) 4aa1 if accompanying, or following to join, the alien described in clause (i)–
(I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; or
(II) in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien; and
(iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting (as defined in section 1351 of title 18, United States Code); or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes; or 4aa
(V) subject to section 214(q) , 4aa an alien who is the beneficiary (including a child of the principal alien, if eligible to receive a visa under section 203(d) of a petition to accord a status under section 203(a)(2)(A) that was filed with the Attorney General under section 204 on or before the date of the enactment of the Legal Immigration Family Equity Act, if–
(i) such petition has been pending for 3 years or more; or
(ii) such petition has been approved, 3 years or more have elapsed since such filing date, and–
(I) an immigrant visa is not immediately available to the alien because of a waiting list of applicants for visas under section 203(a)(2)(A); or
(II) the alien’s application for an immigrant visa, or the alien’s application for adjustment of status under section 245, pursuant to the approval of such petition, remains pending.
(16) The term “immigrant visa” means an immigrant visa required by this Act and properly issued by a consular officer at his office outside of the United States to an eligible immigrant under the provisions of this Act.
(17) The term “immigration laws” includes this Act and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens.
(18) The term “immigration officer” means any employee or class of employees of the Service or of the United States designated by the Attorney General, individually or by regulation, to perform the functions of an immigration officer specified by this Act or any section thereof.
(19) The term “ineligible to citizenship,” when used in reference to any individual, means, notwithstanding the provisions of any treaty relating to military service, an individual who is, or was at any time, permanently debarred from becoming a citizen of the United States under section 3(a) of the Selective Training and Service Act of 1940, as amended (54 Stat. 885; 55 Stat. 844), or under section 4(a) of the Selective Service Act of 1948, as amended (62 Stat. 605; 65 Stat. 76) 50 U.S.C. App. 454 , or under any section of this Act, or any other Act, or under any law amendatory of, supplementary to, or in substitution for, any of such sections or Acts.
(20) The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.
(21) The term “national” means a person owing permanent allegiance to a state.
(22) The term “national of the United States” means:
(A) a citizen of the United States, or
(B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.
(23) The term “naturalization” means the conferring of nationality of a state upon a person after birth, by any means whatsoever.
(24) [was repealed by Sec. 305(m)(1) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L. 102-232, Dec. 12, 1991, 105 Stat. 1750), effective as if included in section 407(d) of the Immigration Act of 1990. ]
(25) The term “noncombatant service” shall not include service in which the individual is not subject to military discipline, court martial, or does not wear the uniform of any branch of the armed forces.
(26) The term “nonimmigrant visa” means a visa properly issued to an alien as an eligible nonimmigrant by a competent officer as provided in this Act.
(27) The term “special immigrant” means-
(A) an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad;
(B) an immigrant who was a citizen of the United States and may, under section 324(a) or 327 of title III, apply for reacquisition of citizenship;
(C) an immigrant, and the immigrant’s spouse and children if accompanying or following to join the immigrant, who-
(i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States;
(ii) seeks to enter the United States-
(I) solely for the purpose of carrying on the vocation of a minister of that religious denomination,
(II) before September 30, 2015, 254bbb4b4bb in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or
(III) before September 30, 2115, 254bbb4b4bb in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986) at the request of the organization in a religious vocation or occupation; and
(iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (I);
(D) an immigrant who is an employee, or an honorably retired former employee, of the United States Government abroad, or of the American Institute in Taiwan, and who has performed faithful service for a total of fifteen years, or more, and his accompanying spouse and children: Provided, That the principal officer of a Foreign Service establishment (or, in the case of the American Institute in Taiwan, the Director thereof), in his discretion, shall have recommended the granting of special immigrant status to such alien in exceptional circumstances and the Secretary of State approves such recommendation and finds that it is in the national interest to grant such status;
(E) an immigrant, and his accompanying spouse and children, who is or has been an employee of the Panama Canal Company or Canal Zone Government before the date on which the Panama Canal Treaty of 1977 (as described in section 3 (a)(1) of the Panama Canal Act of 1979) enters into force, who was resident in the Canal Zone on the effective date of the exchange of instruments of ratification of such Treaty, and who has performed faithful service as such an employee for one year or more;
(F) an immigrant, and his accompanying spouse and children, who is a Panamanian national and (i) who, before the date on which such Panama Canal Treaty of 1977 enters into force, has been honorably retired from United States Government employment in the Canal Zone with a total of 15 years or more of faithful service, or (ii) who on the date on which such Treaty enters into force, has been employed by the United States Government in the Canal Zone with a total of 15 years or more of faithful service and who subsequently is honorably retired from such employment or continues to be employed by the United States Government in an area of the former Canal Zone;
(G) an immigrant, and his accompanying spouse and children, who was an employee of the Panama Canal Company or Canal Zone government on the effective date of the exchange of instruments of ratification of such Panama Canal Treaty of 1977, who has performed faithful service for five years or more as such an employee, and whose personal safety, or the personal safety of whose spouse or children, as a direct result of such Treaty, is reasonably placed in danger because of the special nature of any of that employment;
(H) an immigrant, and his accompanying spouse and children, who-
(i) has graduated from a medical school or has qualified to practice medicine in a foreign state,
(ii) 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,
(iii) entered the United States as a nonimmigrant under subsection (a)(15)(H) or (a)(15)(J) before January 10, 1978, and
(iv) has been continuously present in the United States in the practice or study of medicine since the date of such entry;
(I) (i) an immigrant who is the unmarried son or daughter of an officer or employee, or of a former officer or employee, of an international organization described in paragraph (15)(G)(i), and who (I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv) or paragraph (15)(N), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a status under t his subparagraph and for a period or periods aggregating at least seven years between the ages of five and 21 years, and (II) applies for a visa or adjustment of status under this subparagraph no later than his twenty- fifth birthday or six months after the date of the enactment of the Immigration Technical Corrections Act of 1988, whichever is later;
(ii) an immigrant who is the surviving spouse of a deceased officer or employee of such an international organization, and who
(I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv) or paragraph (15)(N), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a status under this subparagraph and for a period or periods aggregating at least 15 years before the date of the death of such officer or employee, and
(II) files a petition for status under this subparagraph no later than six months after the date of such death or six months after the date of the enactment of the Immigration Technical Corrections Act of 1988, whichever is later;
(iii) an immigrant who is a retired officer or employee of such an international organization, and who
(I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a status under this subparagraph and for a period or periods aggregating at least 15 years before the date of the officer or employee’s retirement from any such international organization, and
(II) files a petition for status under this subparagraph no later than six months after the date of such retirement or six months after the date of enactment of the Immigration and Nationality Technical Corrections Act of 1994, whichever is later; or
(iv) an immigrant who is the spouse of a retired officer or employee accorded the status of special immigrant under clause (iii), accompanying or following to join such retired officer or employee as a member of his immediate family;
(J) 4can immigrant who is present in the United States–
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; 24
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, 24except that–
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; 24 and
(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; 4d
(K) an immigrant who has served honorably on active duty in the Armed Forces of the United States after October 15, 1978, and after original lawful enlistment outside the United States (under a treaty or agreement in effect on the date of the enactment of this subparagraph) for a period or periods aggregating-
(i) 12 years and who, if separated from such service, was never separated except under honorable conditions, or
(ii) 6 years, in the case of an immigrant who is on active duty at the time of seeking special immigrant status under this subparagraph and who has reenlisted to incur a total active duty service obligation of at least 12 years, and the spouse or child of any such immigrant if accompanying or following to join the immigrant, but only if the executive department under which the immigrant serves or served recommends the granting of special immigrant status to the immigrant; 4dd 4d
4d(L) an immigrant who would be described in clause (i), (ii), (iii), or (iv) of subparagraph (I) if any reference in such a clause–
(i) to an international organization described in paragraph (15)(G)(i) were treated as a reference to the North Atlantic Treaty Organization (NATO);
(ii) to a nonimmigrant under paragraph (15)(G)(iv) were treated as a reference to a nonimmigrant classifiable under NATO-6 (as a member of a civilian component accompanying a force entering in accordance with the provisions of the NATO Status-of-Forces Agreement, a member of a civilian component attached to or employed by an Allied Headquarters under the `Protocol on the Status of International Military Headquarters’ set up pursuant to the North Atlantic Treaty, or as a dependent); and
(iii) to the Immigration Technical Corrections Act of 1988 or to the Immigration and Nationality Technical Corrections Act of 1994 were a reference to the American Competitiveness and Workforce Improvement Act of 1998 4dd
(M) 4ddsubject to the numerical limitations of section 203(b)(4), an immigrant who seeks to enter the United States to work as a broadcaster in the United States for the International Broadcasting Bureau of the Broadcasting Board of Governors, or for a grantee of the Broadcasting Board of Governors, and the immigrant’s accompanying spouse and children.
(28) The term “organization” means, but is not limited to, an organization, corporation, company, partnership, association, trust, foundation or fund; and includes a group of persons, whether or not incorporated, permanently or temporarily associated together with joint action on any subject or subjects.
(29) The term “outlying possessions of the United States” means American Samoa and Swains Island.
(30) The term “passport” means any travel document issued by competent authority showing the bearer’s origin, identity, and nationality if any, which is valid for the admission of the bearer into a foreign country.
(31) The term “permanent” means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.
(32) The term “profession” shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.
(33) The term “residence” means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.
(34) The term “Service” means the Immigration and Naturalization Service of the Department of Justice.
(35) The term “spouse”, “wife”, or “husband” does not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.
(36) The term “State” includes the District of Columbia, Puerto Rico, Guam, 23 the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands .
(37) The term “totalitarian party” means an organization which advocates the establishment in the United States of a totalitarian dictatorship or totalitarianism. The terms “totalitarian dictatorship” and “totalitarianism” mean and refer to systems of government not representative in fact, characterized by
(A) the existence of a single political party, organized on a dictatorial basis, with so close an identity between such party and its policies and the governmental policies of the country in which it exists, that the party and the government constitute an indistinguishable unit, and
(B) the forcible suppression of opposition to such party.
(38) The term “United States”, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, 23 the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands .
(39) The term “unmarried”, when used in reference to any individual as of any time, means an individual who at such time is not married, whether or not previously married.
(40) The term “world communism” means a revolutionary movement, the purpose of which is to establish eventually a Communist totalitarian dictatorship in any or all the countries of the world through the medium of an internationally coordinated Communist political movement.
(41) The term “graduates of a medical school” means aliens who have graduated from a medical school or who have qualified to practice medicine in a foreign state, other than such aliens who are of national or international renown in the field of medicine.
(42) The term “refugee” means:
(A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or
(B) in such circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term “refugee” does not include any person who 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. For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. 5
(43) 6The term “aggravated felony” means-
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in controlled substance (as described in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code);
(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18, United States Code) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(E) an offense described in-
(i) section 842 (h) or (i) of title 18, United States Code, or section 844 (d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);
(ii) section 922(g) (1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924 (b) or (h) of title 18, United States Code (relating to firearms offenses); or
(iii) section 5861 of the Internal Revenue Code of 1986 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment at 7 least 1 year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at 8least 1 year;
(H) an offense described in section 875, 876, 877, or 1202 of title 18, United States Code (relating to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of title 18, United States Code (relating to child pornography);
(J) an offense described in section 1962 of title 18, United States Code (relating to racketeer influenced corrupt organizations, or an offense described in section 1084 (if it is the second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of 1 year imprisonment or more may be imposed;
(K) an offense that-
(i) relates to the owning, controlling, managing, or supervising of a prostitution business; or
(ii) is described in section 2421, 2422, 2423, of Title 18, United States Code (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or
(iii) 99a is described in any of sections 1581-1585 or 1588-1591 of title 18, United States Code (relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in-
(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18, United States Code;
(ii) section 601 of the National Security Act of 1947 (50 U.S.C. 421) (relating to protecting the identity of undercover intelligence agents); or
(iii) section 601 of the National Security Act of 1947 (relating to protecting the identity of undercover agents);
(M) an offense that-
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in section 7201 of the Internal Revenue Code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 274(a) (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this Act 10;
(O) an offense described in section 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18, United States Code, or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this Act 11;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; and
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year 12;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year 13;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.
The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph. 14
(44) (A) The term “managerial capacity” means an assignment within an organization in which the employee primarily-
(i) manages the organization, or a department, subdivision, function, or component of the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day- to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
(B) The term “executive capacity” means an assignment within an organization in which the employee primarily-
(i) directs the management of the organization or a major component or function of the organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
(C) If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.
(45) The term “substantial” means, for purposes of paragraph (15)(E) with reference to trade or capital, such an amount of trade or capital as is established by the Secretary of State, after consultation with appropriate agencies of Government.
(46) The term “extraordinary ability” means, for purposes of section 101(a)(15)(O)(i), in the case of the arts, distinction.
(47) (A) The term ‘order of deportation’ means the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation.
(B) The order described under subparagraph (A) shall become final upon the earlier of-
(i) a determination by the Board of Immigration Appeals affirming such order; or
(ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals. 15
(48) (A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. 16
(49) The term “stowaway” means any alien who obtains transportation without the consent of the owner, charterer, master or person in command of any vessel or aircraft through concealment aboard such vessel or aircraft. A passenger who boards with a valid ticket is not to be considered a stowaway. 17
(50) 17bThe term ‘intended spouse’ means any alien who meets the criteria set forth in section 204(a)(1)(A)(iii)(II)(aa)(BB), 204(a)(1)(B)(ii)(II)(aa)(BB), or 240A(b)(2)(A)(i)(III).
(51) 17bbThe term ‘VAWA self-petitioner’ means an alien, or a child of the alien, who qualifies for relief under–
(A) clause (iii), (iv), or (vii) of section 204(a)(1)(A);
(B) clause (ii) or (iii) of section 204(a)(1)(B);
(C) section 216(c)(4)(C);
(D) the first section of Public Law 89-732 (8 U.S.C. 1255 note) (commonly known as the Cuban Adjustment Act) as a child or spouse who has been battered or subjected to extreme cruelty;
(E) section 902(d)(1)(B) of the Haitian Refugee Immigration Fairness Act of 1998 (8 U.S.C. 1255 note);
(F) section 202(d)(1) of the Nicaraguan Adjustment and Central American Relief Act; or
(G) section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208).
(52) 26The term `accredited language training program’ means a language training program that is accredited by an accrediting agency recognized by the Secretary of Education.
Act 101(b)
(b) As used in titles I and II-
(1) The term “child” means an unmarried person under twenty-one years of age who is-
(A) a child born in wedlock;
(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;
(C) a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;
(D) a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;
(E)
(i)
17a/ a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years
17ab/ or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household : Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or
(ii)
17a/ subject to the same proviso as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (F)(i); (II) was adopted by the adoptive parent or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child was adopted while under the age of 18 years;
17aa/
(F)
(i)
17a/ a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section
201(b) , who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen who is at least 25 years of age, at least 1 of whom personally saw and observed the child before or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child’s proposed residence: Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child sha ll thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or
(ii)
17a/ subject to the same provisos as in clause (i), a child who: (I) is a natural sibling of a child described in clause(i) or subparagraph (E)(i); (II) has been adopted abroad, or is coming to the United States for adoption, by the adoptive parent (or prospective adoptive parent) or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child is under the age of 18 at the time a petition is filed in his or her behalf to accord a classific ation as an immediate relative under section
201(b) ; or
17aa/ .
(G) (i)
17aa/ a child, younger than 16 years of age at the time a petition is filed on the child’s behalf to accord a classification as an immediate relative under section
201(b) , who has been adopted in a foreign state that is a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, done at The Hague on May 29, 1993, or who is emigrating from such a foreign state to be adopted in the United States, by a United States citizen and spouse jointly, or by an unmarried United States citizen at least 25 years of age, Provided, That – –
(I) the Secretary of Homeland Security is satisfied that proper care will be furnished the child if admitted to the United States;
(II) the child’s natural parents (or parent, in the case of a child who has one sole or surviving parent because of the death or disappearance of, abandonment or desertion by, the other parent), or other persons or institutions that retain legal custody of the child, have freely given their written irrevocable consent to the termination of their legal relationship with the child, and to the child’s emigration and adoption;
(III) in the case of a child having two living natural parents, the natural parents are incapable of providing proper care for the child;
(IV) the Secretary of Homeland Security is satisfied that the purpose of the adoption is to form a bona fide parent-child relationship, and the parent-child relationship of the child and the natural parents has been terminated (and in carrying out both obligations under this subclause the Attorney General may consider whether there is a petition pending to confer immigrant status on one or both of such natural parents); and
(V) in the case of a child who has not been adopted –
(aa) the competent authority of the foreign state has approved the child’s emigration to the United States for the purpose of adoption by the prospective adoptive parent or parents; and
(bb) the prospective adoptive parent or parents has or have complied with any pre-adoption requirements of the child’s proposed residence; and
(ii) except that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.
(iii) subject to the same provisos as in clauses (i) and (ii), a child who-
(I) is a natural sibling of a child described in clause (i), subparagraph (E)(i), or subparagraph (F)(i);
(II) was adopted abroad, or is coming to the United States for adoption, by the adoptive parent (or prospective adoptive parent) or parents of the sibling described in clause (i), subparagraph (E)(i), or subparagraph (F)(i); and
(III) is otherwise described in clause (i), except that the child is younger than 18 years of age at the time a petition is filed on his or her behalf for classification as an immediate relative under section 201(b).
(2) The term “parent”, “father”, or “mother” means a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in (1) above, except that, for purposes of paragraph (1)(F) (other than the second proviso therein) and paragraph (1)(G)(i)
17aa/ in the case of a child born out of wedlock described in paragraph (1)(D) (and not described in paragraph (1)(C)), the term “parent” does not include the natural father or the child if the father has disappeared or abandoned or deserted the child or if the father has in writing irrevocably released the child for emigration and adoption.
(3) The term “person” means an individual or an organization.
(4)
18/ The term “immigration judge” means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office of Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 240. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.
(5) The term “adjacent islands” includes Saint Pierre, Miquelon, Cuba, the Dominican Republic, Haiti, Bermuda, the Bahamas, Barbados, Jamaica, the Windward and Leeward Islands, Trinidad, Martinique, and other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea.
(c) As used in title III-
(1) The term “child” means an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere, and, except as otherwise provided in sections 320, and 321 of title III, a child adopted in the United States, if such legitimation or adoption takes place before the child reaches the age of 16 years (except to the extent that the child is described in subparagraph (E)(ii) or (F)(ii) of subsection (b)(1)),
18a/ and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.
(2) The terms “parent”, “father”, and “mother” include in the case of a posthumous child a deceased parent, father, and mother.
(d) [stricken by Sec. 9(a)(3) of Pub. L. 100-525].
(e) For the purpose of this Act-
(1) The giving, loaning, or promising of support or of money or any other thing of value to be used for advocating any doctrine shall constitute the advocating of such doctrine; but nothing in this paragraph shall be construed as an exclusive definition of advocating.
(2) The giving, loaning, or promising of support or of money or any other thing of value for any purpose to any organization shall be presumed to constitute affiliation therewith; but nothing in this paragraph shall be construed as an exclusive definition of affiliation.
(3) Advocating the economic, international, and governmental doctrines of world communism means advocating the establishment of a totalitarian Communist dictatorship in any or all of the countries of the world through the medium of an internationally coordinated Communist movement.
(f) For the purposes of this Act-No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is or was–
(2) stricken by Sec. 2(c)(1) of Pub. L. 97-116.
(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and
18c/ (10)(A) of section
212(a) of this Act; or subparagraphs (A) and (B) of section
212(a)(2) and subparagraph (C) thereof of such section (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana); if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;
(4) one whose income is derived principally from illegal gambling activities;
(5) one who has been convicted of two or more gambling offenses committed during such period;
(6) one who has given false testimony for the purpose of obtaining any benefits under this Act;
(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;
(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43)); or
18b/
(9)
18b/ one who at any time has engaged in conduct described in section 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 212(a)(2)(G) (relating to severe violations of religious freedom).
The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an ad opted 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 statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be made based on it.
(g) For the purposes of this Act any alien ordered deported or removed (whether before or after the enactment of this Act) who has left the United States, shall be considered to have been deported or removed in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed.
(h) For purposes of section 212(a)(2)(E), the term “serious criminal offense” means-
(2) any crime of violence, as defined in section 16 of title 18 of the United States Code; or
(3) any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another.
(i)
20/ With respect to each nonimmigrant alien described in subsection (a)(15)(T)(i)–
(1) the
22/ Secretary of Homeland Security, the Attorney General, and other Government officials, where appropriate, shall provide the alien with a referral to a nongovernmental organization that would advise the alien regarding the alien’s options while in the United States and the resources available to the alien; and
(2) the
22/ Secretary of Homeland Security shall, during the period the alien is in lawful temporary resident status under that subsection, grant the alien authorization to engage in employment in the United States and provide the alien with an “employment authorized” endorsement or other appropriate work permit.
———————————————————————————–
FOOTNOTES FOR SECTION 101
FN 1 This sentence added by section
104 of IIRIRA . Clause (A) applies to documents issued on or after 18 months after the date of the enactment of IIRIRA. Clause (B) applies to cards presented on or after 3 years after the date of enactment of IIRIRA.
Section 410 (c) of Pub. L. 105-277 under General Provisions – Department of State and Related Agencies, amended section
104(b)(2) of IIRIRA by striking “3 years” and inserting “5 years”.
FN1a
Section 2222 (e), Pub. L. 105-277, Title XXII, Department of State Authorities and Activities, amended section 101(a)(9) by inserting “or employee” after “officer” the second place it appears; and inserting before the period at the end of the sentence “or, when used in title III, for the purpose of adjudicating nationality”
FN 2 Amended by Section
301 of IIRIRA , effective on the first day of the first month beginning more than 180 days after the date of enactment of IIRIRA. The effective date is established by Section
309 of IIRIRA and is referred to as the title III-A effective date. Regulations are required to be promulgated not later than 30 days before the title III effective date. Section
309(c) of IIRIRA provides for transition for aliens in proceedings and provides that as a general rule the new provisions governed by the title III effective date do not apply to such aliens. Section 309(c) does, however, provide the Attorney General with authority and options to place certain such aliens under the new law.
FN3
Amended by Section 625 of IIRIRA , effective as to “individuals who obtain the status of a nonimmigrant under section 101(a)(15)(F) of the [INA] after the end of the 60- day period beginning on the date of the enactment of this Act, including aliens whose status as such a nonimmigrant is extended after the end of such period.
Section (a)(1) of Public Law 111-306 , dated December 14, 2010, amended section 101(a)(15)(F)(i) by striking the term “a language” and inserting the term “an accredited language”
Effective Date –
(1) IN GENERAL- Except as provided in paragraph (a)(2) of Public Law 111-306, the amendments made by subsection (a) shall–
(A) take effect on June 12, 2011, which is 180 days after the date of the enactment of this Act; and
(B) apply with respect to applications for a nonimmigrant visa under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (8 U.S.C. 101(a)(15)(F)(i)) that are filed on or after the June 12, 2011 which is the effective date described in subparagraph (A).
(2) TEMPORARY EXCEPTION-
(A) IN GENERAL- Notwithstanding section 101(a)(15)(F)(i) of the Immigration and Nationality Act, as amended by subsection (a) (of Public Law 111-306), during the 3-year period beginning on December 14, 2010 which is the date of the enactment of this Act, an alien seeking to enter the United States to pursue a course of study at a language training program that has been certified by the Secretary of Homeland Security and has not been accredited or denied accreditation by an entity described in section 101(a)(52) of such Act may be granted a nonimmigrant visa under such section 101(a)(15)(F)(i)).
(B) ADDITIONAL REQUIREMENT- An alien may not be granted a nonimmigrant visa under subparagraph (b)(1)(A) of Public Law 111-306, if the sponsoring institution of the language training program to which the alien seeks to enroll does not–
(i) submit an application for the accreditation of such program to a regional or national accrediting agency recognized by the Secretary of Education within 1 year after December 14, 2010, which is the date of the enactment of this Act (Public Law 111-306); and
(ii) comply with the applicable accrediting requirements of such agency.
FN 3a Public Law
104-302 extends the authorized period of stay within the United States for certain nurses.
FN 3b Section 2 of Public Law
106-95 , dated November 12, 1999, added a new nonimmigrant classification (c) for registered nurses who meet the qualifications under section 212(m) of the Immigration and Nationality Act. Section 2(c) of Public Law 106-95, also amends section 101(a)(15)(H)(i) by striking subclause (a).
Section 101(a)(15)(H)(i)(b) is amended by section
402(a)(1) of the United States Chile Free Trade Agreement Implementation Act, Public Law 108-77, dated September 3, 2003.
FN 3bb Section
1103(a) of Public Law 106-553, dated December 21, 2000, amended section 101(a)(15)(K) in its entirety.
Section
402(b) of Public Law 109-248, dated July 27, 2006, amended section 101(a)(15)(K) by inserting ‘(other than a citizen described in section 204(a)(1)(A)(viii)(I))’ after ‘citizen of the United States’ each place that phrase appears.
FN 3bbb Section
536 of Public Law 109-90, dated October 18, 2005, amended section 101(a)(15)(H)(ii)(a) by:
striking “the Internal Revenue Code of 1954 and agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)),” and inserting “the Internal Revenue Code of 1986, agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), and the pressing of apples for cider on a farm,”.
FN 3c Section 101(a)(15)(L) was amended by section
2(b) of Public Law 107-125, dated January 16, 2002, by inserting the phrase “subject to section 214(c)(2)”.
FN 3d Section
101(a)(15)(F) was amended by revising clause (ii) and adding a new clause (iii) (See
section 2(a) of the Border Commuter Student Act of 2002, Public Law
107-274 , dated November 2, 2002).
Section 101(a)(15)(M) was amended by revising clause (ii) and adding a new clause (iii) (See
section 2(b) of the Border Commuter Student Act of 2002, Public Law 107-274, dated November 2, 2002).
FN4
Section 421(b) , Pub. L. 105-277, ACWIA, amended section 101(a)(15)(N) by adding “(or under analogous authority under paragraph (27)(L))”.
FN 4a Section 2(b)(1) , Irish Peace Process Cultural and Training Program Act of 1998, Pub. L. 105-319, inserted an “(i)” after subparagraph “Q” and added “(ii)”.
Sunset: (1) Effective October 1, 2005, the Irish Peace Process Cultural and Training Program Act of 1998 is repealed.
(2) Effective October 1, 2005, section 101(a)(15)(Q) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(Q)) is amended–
(A) by striking “or” at the end of clause (i);
(B) by striking “(i)” after “(Q)”; and
(C) by striking clause (ii).
FN 4aa Section
107(e) of Public Law 106-386, dated October 28, 2000, add section 101(a)(15)(T). As further amended by section
1513(b) of Public Law 106-386 which added section 101(a)(15)(U). As further amended by section
1102(a)(3) of Public Law 106-553, dated December 21, 2000, which added section 101(a)(15)(V).
Section
8(a)(1)(B) ,
(C) , and
(D) of the Trafficking Victims Protection Reauthorization Act of 2003, Public Law 108-193, dated December 19, 2003, further amended:
Subparagraph(T) by striking “214(n),” and inserting “214(o),”;
Subparagraph (U) by striking “214(o),” and inserting “214(p),”; and by
Subparagraph (V), by striking “214(o),” and inserting “214(q),”.
Section
801 of Public Law 113-4, dated March 7, 2013, amended section 101(a)(15)(U)(iii) by inserting “stalking;” after “sexual exploitation;”. Section 1222 of Public Law 113-4, amended section 101(a)(15)(U)(iii) by inserting “fraud in foreign labor contracting (as defined in section 1351 of title 18, United States Code):” after “perjury;”.
FN 4aa1 Section
801(b) of Public Law 109-162, dated January 5, 2006, amended section 101(a)(15)(U) of the Immigration and Nationality Act.
FN 4aaa Section
4(b)(1) of the Trafficking Victims Protection Reauthorization Act of 2003, Public Law 108-193, dated December 19, 2003, amended sections 101(a)(15)(T)(i)(III)(bb) and (ii)(I).
FN 4b Section 101(a)(27)(C)(ii) was amended by
section 1 of Public Law 105-54 , dated October 6, 1997, by striking “1997” each place it appears and inserting “2000”. This change was effective October 6, 1997.
FN 4bb Section 2 of Public Law
106-409 , dated November 1, 2000, amended section 101(a)(27)(C)(ii) by striking “2000” and inserting “2003”. Change was effective October 1, 2000.
Section 1 of Public Law
108-99 , dated October 15, 2003, amended section 101(a)(27)(C)(ii) by striking “2003” and inserting “2008”. Change was effective October 1, 2003.
FN 4bbb
Section 2 of Public Law 110-391 , dated October 10, 2008, amended section 101(a)(27)(C)(ii)(II) and (III) by striking ‘October 1, 2008,’ both places such term appears and inserting ‘March 6, 2009,’
Section 1 of Public Law 111-9 , dated March 20, 2009, amended section 101(a)(27)(C)(ii)(II) and (III) by striking ‘March 6, 2009,’ each place such term appears and inserting ‘September 30, 2009’
FN 4ab Section
1(b)(1)(A) of Public Law 108-449, dated December 10, 2004, amended section 101(a)(15)(Q) of the Act by striking “Attorney General” and inserting “Secretary of Homeland Security” wherever that term appeared.
FN 4ab1 Section
1(b)(1)(B)(i) of Public Law 108-449, dated December 10, 2004, amended clause (ii)(I) by striking “35 years of age or younger having a residence” and inserting “citizen of the United Kingdom or the Republic of Ireland, 21 to 35 years of age, unemployed for not less than 12 months, and having a residence for not less than 18 months”.
Section
1(b)(1)(B)(ii) amended clause (ii)(I) by striking “36 months” and inserting “24 months”.
FN 4ab2 Section
801(a) of Public Law 109-162, dated January 5, 2006, amended section 101(a)(15)(T) of the Immigration and Nationality Act.
INA: Act 101 FN 4ab3
FN 4 ab3 Section
201(a) of Public Law 110-457, dated December 23, 2008, made several technical amendments to section 101(a)(15)(T) of the Immigration and Nationality Act.
Effective Date – The amendments made by this section shall–
(1) take effect on the date of enactment of the Act; and
(2) apply to applications for immigration benefits filed on or after such date.
FN 4d
Section 421(a) , Public Law 105-277, under Division B – Emergency Supplemental Appropriations, Title IV – American Competitiveness and Workforce Improvement Act (ACWIA), amended section 101(a)(27) by:
(1) striking “or” at the end of subparagraph (J);
(2) striking the period at the end of subparagraph (K) and inserting “; or” and by
(3) adding at the end, a new subparagraph (L).
FN 4dd Section 1(a) of Public Law
106-536 , dated November 22, 2000, amended section 101(a)(27) by:
(1) striking “or” at the end of subparagraph (K),
(2) striking the period at the end of subparagraph (L), and by
(3) adding a new subparagraph (M).
FN 6 Shown as amended by AEDPA and
IIRIRA § 321(a) which made several new amendments. The amendments made by § 321(a) “shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred, and shall apply under section
276(b) of the Immigration and Nationality Act only to violations of section
276(a) of such Act occurring on or after such date.”
FN 7 Sic.
Section 321(a)(3) of IIRIRA amended subparagraphs (F), (G), (N), and (P) the same and omitted the term “is”. Note also, subparagraph (P) does not contain the language referenced by section 321(a)(3). Section 322(a)(2) also amended this subparagraph and subparagraph (G) by striking the phrase “imposed (regardless of any suspension of imprisonment” but the sentence must still be ordered. See INA 101(a)(48) infra.
FN 9 Sic.
§ 671(b)(5) of IIRIRA deleted a comma here but incorrectly referred to clause (ii) instead of clause (iii) where the referenced comma appeared.
FN 9a Section
4(b)(5) of the Trafficking Victims Protection Reauthorization Act of 2003, Public Law 108-193, dated December 19, 2003, revised section 101(a)(43)(K)(iii).
FN 10 Amended by
section 321(a)(8) which mooted amendment by § 321(a)(3) regarding “is at least 5 years”.
FN 11
Section 321(a)(3) of IIRIRA attempted to amend subparagraph (P) but the subparagraph does not contain the referenced language “is at least 5 years”. The referenced phrase was changed by AEDPA but the change was not accounted for in IIRIRA. Thus, no change from that amendment is shown here. The section is shown as amended by § 321(a)(9) of IIRIRA. Because of the conflicting amendments it is unclear whether the phrase “is at least 12 months” is correct as shown here. Reference to the U.S. Code is recommended.
FN 12
Section 321(a)(10) of IIRIRA changed the term of imprisonment from 5 years to 1 year.
FN 13 Section
321(a)(11) of IIRIRA changed the term of imprisonment from 5 years to 1 year.
FN 14 Final sentence added by
§ 321(b) of IIRIRA .
Section 321(c) of IIRIRA provides: “The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred, and shall apply under section 276(b) of the Immigration and Nationality Act only to violations of section 276(a) of such Act occurring on or after such date.”
FN 16 Paragraph (48) added by
§ 322 of IIRIRA . This section also made several conforming amendments to paragraph (43) by striking the term “imposed (regardless of any suspension of imprisonment)” in subparagraphs (F), (G), (N), and (P). These amendments (new paragraph (48) and the conforming amendments to paragraph (43)) all apply “to convictions and sentences entered before, on, or after the date of the enactment of [IIRIRA]. Subparagraphs (B) and (C) of section 240(c)(3) of [this Act], . . .shall apply to proving such convictions.”
IIRIRA, §§ 322(c) ;
304(a)(3) .
FN 17 Added by
§ 361 of IIRIRA , effective on the date of enactment of IIRIRA.
FN 17aa Section
302(a) of Public Law 106-279, dated October 6, 2000 added subparagraph (G). Section
302(c) of Public Law 106-279 amended section 102(b)(2).
Section 3 of Public Law 111-287, dated November 30, 2010, revised section 101(b)(1)(G).
Effective date
(a) In General – Except as provided in paragraph (b) below, the amendments made by Public Law 111-287 shall take effect on November 30, 2010.
(b) Exception – An alien who is described in section 101(b)(1)(G)(iii) of the Immigration and Nationality Act, as added by section 3 of Public Law 111-287, and who attained 18 years of age on or after April 1, 2008, shall be deemed to meet the age requirement specified in section 101(b)(1)(G)(iii)(III), if a petition for classification of the alien as an immediate relative under section 201(b) of the Immigration and Nationality Act (8 U.S.C. 1151(b)) is filed not later than 2 years after the date of the enactment of this Act (Public Law 111-287).
FN 17b Section
1503(a) of Public Law 106-386, dated October 28, 2000, added section 101(a)(50).
17bb Section
811 of Public Law 109-162, dated January 5, 2006, amended section 101(a) of the Immigration and Nationality Act by adding paragraph (51).
FN 17ab Section
805(d) of Public Law 109-162, dated January 5, 2006, amended section 101(b)(1)(E)(i) of the Immigration and Nationality Act.
FN 18 Amended by
§ 371 of IIRIRA , effective on date of enactment of IIRIRA.
FN 18a Section
101(c)(1) was amended by section 1(b)(1) of Public Law
106-139 , dated December 7, 1999.
FN 18b Section
5504 of Public law 108-458, amended section 101 by amending subparagraph (f)(8) and adding subparagraph (f)(9).
FN 18c Section
822(c)(1) of Public Law 109-162, dated January 5, 2006, amended section 101(f)(3) of the Immigration and Nationality Act.
Effective Date : The amendment made by section
822(c)(1) of Public Law 109-162 shall be effective as if included in section
603(a)(1) of the Immigration Act of 1990 (Public Law 101-649; 104 Stat. 5082).
FN 19 Section
201(a)(1) of Public Law 106-395, date October 30, 2000, added a paragraph at the end of paragraph (f).
EFFECTIVE DATE — The amendment made by section
201(a)(1) of Public Law 106-395, shall be effective as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
Public Law 104-208 ; 110 Stat. 3009-546) and shall apply to individuals having an application for a benefit under the Immigration and Nationality Act pending on or after September 30, 1996.
FN 20 Section
107(e)(4) of Public Law 106-386, dated October 28, 2000, added subsection (i).
FN 21 Section
501(a) of Public Law 109-13 amended section 101(a)(15)(E).
FN 22 Section
801(c) of Public Law 109-162, dated January 5, 2006, amended section 101(i) of the Immigration and Nationality Act.
INA: ACT FN 23
FN23 Section
702(j)(1) of Public Law 110-229, amended section 101(a)(15)(D)(ii), by inserting `or the Commonwealth of the Northern Mariana Islands’ after `Guam’ each time such term appears
Section
702(j)(2) of Public Law 110-229, amended section 101(a)(36) by striking `and the Virgin Islands of the United States’ and inserting `the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands’
Section
702(j)(3) of Public Law 110-229, amended section 101(a)(38) by striking `and the Virgin Islands of the United States’ and inserting `the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands’
INA: FN 24
FN 24 Section
235(d)(1) of Public Law 110-457, dated December 23, 2008, made several amendments to section 101(a)(27)(J) of the Immigration and Nationality Act.
Expeditious Adjudication – All applications for special immigrant status under section
101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)) shall be adjudicated by the Secretary of Homeland Security not later than 180 days after the date on which the application is filed.
FN 25 Section
568(a)(1) of Public Law 111-83, dated October 28, 2009, amended section 101(a)(27)(C)(ii)(II) and (III) by changing the date “September 30, 2009” to “September 30, 2012” (2) STUDY AND PLAN- Not later than 180 days after October 28, 2009, the Director of United States Citizenship and Immigration Services shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that includes – (A) the results of a study conducted under the supervision of the Director to evaluate the Special Immigrant Nonminister Religious Worker Program to identify the risks of fraud and noncompliance by program participants; and (B) a detailed plan that describes the actions to be taken by United States Citizenship and Immigration Services to improve the integrity of the program. (3) PROGRESS REPORT- Not later than 240 days after the submission of the report under paragraph (2), the Director of United States Citizenship and Immigration Services shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes the progress made in implementing the plan described in clause (a)(2)(B) of this section.
FN 26 Section
(a)(2) of Public Law 111-306, dated December 14, 2010, added subsection 101(a)(52).
——————————————————————————-
INA: ACT 102 – APPLICABILITY OF TITLE II TO CERTAIN NONIMMIGRANTS
Sec. 102. [8 U.S.C. 1102] Except as otherwise provided in this Act, for so long as they continue in the nonimmigrant classes enumerated in this section, the provisions of this Act relating to ineligibility to receive visas and the removal of aliens shall not be construed to apply to nonimmigrants-
(1) within the class described in paragrap(15)(A)(i) of section 01(a), except those provisions relating to reasonable requirements of passports and visas as a means of identification and documentation necessary to establish their qualifications under such paragraph (15)(A)(i), and, under such rules and regulations as the President may deem to be necessary, the provisions of subparagraphs (A) through (C) of section
212(a)(3) ;
(2) within the class described in paragraph (15)(G)(i) of section 101(a), except those provisions relating to reasonable requirements of passports and visas as a means of identification and documentation necessary to establish their qualifications under such paragraph (15)(G)(i), and the provisions of subparagraphs (A) through (C) of section
212(a)(3) ; and
(3) within the classes described in paragraphs (15) (A) (ii), (15) (G) (ii), (15) (G) (iii), or (15) (G) (iv) of section 101 (a), except those provisions relating to reasonable requirements of passports and visas as a means of identification and documentation necessary to establish their qualifications under such paragraphs, and the provisions of subparagraphs (A) through (C) of section
212(a)(3) .
———————————————————————————
INA: ACT 103 – POWERS AND DUTIES OF THE ATTORNEY GENERAL AND THE COMMISSIONER
Sec. 103. [8 U.S.C. 1103] (a) (1) The Attorney General shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling .
(2) He shall have control, direction, and supervision of all employees and of all the files and records of the Service.
(3) He shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.
(4) He may require or authorize any employee of the Service or the Department of Justice to perform or exercise any of the powers, privileges, or duties conferred or imposed by this Act or regulations issued thereunder upon any other employee of the Service.
(5) He shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens and shall, in his discretion, appoint for that purpose such number of employees of the Service as to him shall appear necessary and proper.
(6) He is authorized to confer or impose upon any employee of the United States, with the consent of the head of the Department or other independent establishment under whose jurisdiction the employee is serving, any of the powers, privileges, or duties conferred or imposed by this Act or regulations issued thereunder upon officers or employees of the Service.
(7) He may, with the concurrence of the Secretary of State, establish offices of the Service in foreign countries; and, after consultation with the Secretary of State, he may, whenever in his judgment such action may be necessary to accomplish the purposes of this Act, detail employees of the Service for duty in foreign countries.
(8)
9/ After consultation with the Secretary of State, the Attorney General may authorize officers of a foreign country to be stationed at preclearance facilities in the United States for the purpose of ensuring that persons traveling from or through the United States to that foreign country comply with that country’s immigration and related laws.
3/
(9)
9/ Those officers may exercise such authority and perform such duties as United States immigration officers are authorized to exercise and perform in that foreign country under reciprocal agreement, and they shall enjoy such reasonable privileges and immunities necessary for the performance of their duties as the government of their country extends to United States immigration officers.
3/
(10)
1/ 9/ In the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize any State or local law enforcement officer, with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving, to perform or exercise any of the powers, privileges, or duties conferred or imposed by this Act or regulations issued thereunder upon officers or employees of the Service.
(11)
2/ 9/ The Attorney General, in support of persons in administrative detention in non-Federal institutions, is authorized-
(A) to make payments from funds appropriated for the administration and enforcement of the laws relating to immigration, naturalization, and alien registration for necessary clothing, medical care, necessary guard hire, and the housing, care, and security of persons detained by the Service pursuant to Federal law under an agreement with a State or political subdivision of a State; and
(B) to enter into a cooperative agreement with any State, territory, or political subdivision thereof, for the necessary construction, physical renovation, acquisition of equipment, supplies or materials required to establish acceptable conditions of confinement and detention services in any State or unit of local government which agrees to provide guaranteed bed space for persons detained by the Service.
(b)
4/ (1) The Attorney General may contract for or buy any interest in land, including temporary use rights, adjacent to or in the vicinity of an international land border when the Attorney General deems the land essential to control and guard the boundaries and borders of the United States against any violation of this Act.
(2) The Attorney General may contract for or buy any interest in land identified pursuant to paragraph (1) as soon as the lawful owner of that interest fixes a price for it and the Attorney General considers that price to be reasonable.
(3) When the Attorney General and the lawful owner of an interest identified pursuant to paragraph (1) are unable to agree upon a reasonable price, the Attorney General may commence condemnation proceedings pursuant to the Act of August 1, 1888 (Chapter 728; 25 Stat. 357).
(4) The Attorney General may accept for the United States a gift of any interest in land identified pursuant to paragraph (1).
(c) The Commissioner shall be a citizen of the United States and shall be appointed by the President, by and with the advice and consent of the Senate. He shall be charged with any and all responsibilities and authority in the administration of the Service and of this Act which are conferred upon the Attorney General as may be delegated to him by the Attorney General or which may be prescribed by the Attorney General. The Commissioner may enter into cooperative agreements with State and local enfor cement agencies for the purpose of assisting in the enforcement of the immigration laws.
5/
(d) (1) The Commissioner, in consultation with interested academicians, government agencies, and other parties, shall provide for a system for collection and dissemination, to Congress and the public, of information (not in individually identifiable form) useful in evaluating the social, economic, environmental, and demographic impact of immigration laws.
(2)
6/ Such information shall include information on the alien population in the United States, on the rates of naturalization and emigration of resident aliens, on aliens who have been admitted, paroled, or granted asylum, on nonimmigrants in the United States (by occupation, basis for admission, and duration of stay), on aliens who have not been admitted or have been removed from the United States, on the number of applications filed and granted for cancellation of removal, and on the number of aliens estimated to be present unlawfully in the United States in each fiscal year.
(3) Such system shall provide for the collection and dissemination of such information not less often than annually.
(e) (1) The Commissioner shall submit to Congress annually a report which contains a summary of the information collected under subsection (d) and an analysis of trends in immigration and naturalization.
(2) Each annual report shall include information on the number, and rate of denial administratively, of applications for naturalization, for each district office of the Service and by national origin group.
(f)
7/ The Attorney General shall allocate to each State not fewer than 10 full-time active duty agents of the Immigration and Naturalization Service to carry out the functions of the Service, in order to ensure the effective enforcement of this Act.
(g)
10/ ATTORNEY GENERAL.-
(1) IN GENERAL.-The Attorney General shall have such authorities and functions under this Act and all other laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review, on the day before the effective date of the Immigration Reform, Accountability and Security Enhancement Act of 2002.
(2) POWERS.-The Attorney General shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.
————————————————————————————-
FOOTNOTES FOR SECTION 103
FN 3 The last two sentences were added by
§ 125 of IIRIRA . Although this amendment comes (in section order) before the amendments by §
§ 372 and
373 of IIRIRA , giving effect to this amendment before those sections causes significant problems with the redesignation of the paragraphs in INA 103(a) made by
§ 372 . This order of placing the amended text reconciles the amendments. At press time, the Public Law was not yet codified in the U.S. Code to verify this interpretation. Reference to the U.S. Code is recommended.
FN 4 Subsection inserted by
§ 102(d) of IIRIRA . Conforming amendments to rest of section also from § 102(d) of IIRIRA.
FN 7 Added by
§ 134 of IIRIRA , effective December 29, 1996. 90 days after enactment of IIRIRA).
FN 8 Section
5505(a) of Public Law 108-458 added new subsection (h).
FN 9 Section 1102(2)(B) of Public Law 107-296, redesignated paragraphs (8), (9), (8) (as added by section
372 of Public Law 104-208), and (9) (as added by section
373 of Public Law 104-208), as paragraphs (8), (9), (10), and (11) respectively.
FN 10 Section 1102(3) of Public Law 107-296, added a new subparagraph (g).
FN 11
Section 2(a) of Public law 111-122, dated December 22, 2009, repealed section 103(h)
————————————————————————————————-
INA: ACT 104 – POWERS AND DUTIES OF THE SECRETARY OF STATE
Sec. 104. [8 U.S.C. 1104]
(a) The Secretary of State shall be charged with the administration and the enforcement of the provisions of this Act and all other immigration and nationality laws relating to (1) the powers, duties and functions of diplomatic and consular officers of the United States, except those powers, duties and functions conferred upon the consular officers relating to the granting or refusal of visas; (2) the powers, duties and functions of the Administrator; and (3) the determination of nationality of a pe rson not in the United States. He shall establish such regulations; prescribe such forms of reports, entries and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out such provisions. He is authorized to confer or impose upon any employee of the United States, with the consent of the head of the department or independent establishment under whose jurisdiction the employee is serving, any of the powers, functions, or duties conferred or imposed by this Act or regulations issued thereunder upon officers or employees of the Department of State or of the American Foreign Service.
(b) The Secretary of State shall designate an Administrator who shall be a citizen of the United States, qualified by experience. The Administrator shall maintain close liaison with the appropriate committees of Congress in order that they may be advised regarding the administration of this Act by consular officers. The Administrator shall be charged with any and all responsibility and authority in the administration of this Act which are conferred on the Secretary of State as may be delegated to the Administrator by the Secretary of State or which may be prescribed by the Secretary of State, and shall perform such other duties as the Secretary of State may prescribe.
(c) Within the Department of State there shall be a Passport Office, a Visa Office, and such other offices as the Secretary of State may deem to be appropriate, each office to be headed by a director. The Directors of the Passport Office and the Visa Office shall be experienced in the administration of the nationality and immigration laws.
(d) The functions heretofore performed by the Passport Division and the Visa Division of the Department of State shall hereafter be performed by the Passport Office and the Visa Office, respectively.
(e) There shall be a General Counsel of the Visa Office, who shall be appointed by the Secretary of State and who shall serve under the general direction of the Legal Adviser of the Department of State. The General Counsel shall have authority to maintain liaison with the appropriate officers of the Service with a view to securing uniform interpretations of the provisions of this Act.
—————————————————————————–
INA: ACT 105 – LIAISON WITH INTERNAL SECURITY OFFICERS;
1/ DATA EXCHANGE
Sec. 105. [8 U.S.C. 1105]
(a)
1/ The Commissioner and the Administrator shall have authority to maintain direct and continuous liaison with the Directors of the Federal Bureau of Investigation and the Central Intelligence Agency and with other internal security officers of the Government for the purpose of obtaining and exchanging information for use in enforcing the provisions of this Act in the interest of the internal
1/ and border security of the United States. The Commissioner and the Administrator shall maintain direct and continuous liaison with each other with a view to a coordinated, uniform, and efficient administration of this Act, and all other immigration and nationality laws.
1/ (b) (1) The Attorney General and the Director of the Federal Bureau of Investigation shall provide the Department of State and the Service access to the criminal history record information contained in the National Crime Information Center’s Interstate Identification Index (NCIC-III), Wanted Persons File, and to any other files maintained by the National Crime Information Center that may be mutually agreed upon by the Attorney General and the agency receiving the access, for the purpose of determining whet her or not a visa applicant or applicant for admission has a criminal history record indexed in any such file.
(2) Such access shall be provided by means of extracts of the records for placement in the automated visa lookout or other appropriate database, and shall be provided without any fee or charge.
(3) The Federal Bureau of Investigation shall provide periodic updates of the extracts at intervals mutually agreed upon with the agency receiving the access. Upon receipt of such updated extracts, the receiving agency shall make corresponding updates to its database and destroy previously provided extracts.
(4) Access to an extract does not entitle the Department of State to obtain the full content of the corresponding automated criminal history record. To obtain the full content of a criminal history record, the Department of State shall submit the applicant’s fingerprints and any appropriate fingerprint processing fee authorized by law to the Criminal Justice Information Services Division of the Federal Bureau of Investigation.
1/ (c) The provision of the extracts described in subsection (b) may be reconsidered by the Attorney General and the receiving agency upon the development and deployment of a more cost-effective and efficient means of sharing the information.
1/ (d) For purposes of administering this section, the Department of State shall, prior to receiving access to NCIC data but not later than 4 months after the date of enactment of this subsection, promulgate final regulations–
(1) to implement procedures for the taking of fingerprints; and
(2) to establish the conditions for the use of the information received from the Federal Bureau of Investigation, in order–
(A) to limit the redissemination of such information;
(B) to ensure that such information is used solely to determine whether or not to issue a visa to an alien or to admit an alien to the United States;
(C) to ensure the security, confidentiality, and destruction of such information; and
(D) to protect any privacy rights of individuals who are subjects of such information.
FOOTNOTES FOR SECTION 105
FN 1 Amended by section
403 of the USA Patriot Act, Public Law
107-56 , dated October 26, 2001.
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INA: ACT 106 EMPLOYMENT AUTHORIZATION FOR BATTERED SPOUSES OF CERTAIN NONIMMIGRANTS.
Sec. 106. [8 U.S.C. 1106]
1/ 2/
(a) In General- In the case of an alien spouse admitted under subparagraph (A), (E)(iii), (G), or (H) of section
101(a)(15) who is accompanying or following to join a principal alien admitted under subparagraph (A), (E)(iii), (G), or (H) of such section, respectively, the Secretary of Homeland Security may authorize the alien spouse to engage in employment in the United States and provide the spouse with an ’employment authorized’ endorsement or other appropriate work permit if the alien spouse demonstrates that during the marriage the alien spouse or a child of the alien spouse has been battered or has been the subject of extr eme cruelty perpetrated by the spouse of the alien spouse. Requests for relief under this section shall be handled under the procedures that apply to aliens seeking relief under section
204(a)(1)(A)(iii) .
(b) Construction- The grant of employment authorization pursuant to this section shall not confer upon the alien any other form of relief.
FOOTNOTES FOR SECTION 106
FN 1 Repealed by §
306(b) of IIRIRA. Note all references to “special inquiry officer” were changed to “immigration judge” after the section was stricken being rewritten. See §
671 of IIRIRA.
FN 2 Section
814(c) of Public Law 109-162, dated January 5, 2006, added section 106 of the Immigration and Nationality Act.
TITLE II – IMMIGRATION
CHAPTER 1 – SELECTION SYSTEM
—————————————————————————–
INA: ACT 201 – WORLDWIDE LEVEL OF IMMIGRATION
1/
Sec. 201. [8 U.S.C. 1151]
(a) In general. – Exclusive of aliens described in subsection (b), 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 section
203(a) (or who are admitted under section
211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(a)) in a number not to exceed in any fiscal year the number specified in subsection (c) for that year, and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year;
(2) employment-based immigrants described in section 203(b) (or who are admitted under section
211(a) on the basis of a prior issuance of a visa to their accompanying parent under section
203(b) ), in a number not to exceed in any fiscal year the number specified in subsection (d) for that year, and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year; and
(3) for fiscal years beginning with fiscal year 1995, diversity immigrants described in section
203(c) (or who are admitted under section
211(a) on the basis of a prior issuance of a visa to their accompanying parent under section
203(c) ) in a number not to exceed in any fiscal year the number specified in subsection (e) for that year, and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year.
(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), are as follows:
(1)
(A) Special immigrants described in subparagraph (A) or (B) of section
101(a)(27) .
(B) Aliens who are admitted under section
207 or whose status is adjusted under section
209 .
(C) Aliens whose status is adjusted to permanent residence under section
210 , or
245A .
(D) Aliens whose removal is canceled under section
240A(a) .
(E) Aliens provided permanent resident status under section
249 .
(2)(A)
(i) Immediate relatives. – For purposes of this subsection, the term “immediate relatives” means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States
6/ and was not legally separated from the citizen at the time of the citizen’s death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen’s death but only if the spouse files a petition under section
204(a)(1)(A)(ii) within 2 years after such date and only until the date the spouse remarries.
3/ For purposes of this clause, an alien who has filed a petition under clause (iii) or (iv) of section
204(a)(1)(A) of this Act remains an immediate relative in the event that the United States citizen spouse or parent loses United States citizenship on account of the abuse.
(ii) Aliens admitted under section
211(a) on the basis of a prior issuance of a visa to their accompanying parent who is such an immediate relative.
(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 –
(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) 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 section 203(a) during that fiscal year.
(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 section 203(b) (relating to employment-based immigrants) during the previous fiscal year and the number of visas issued under that section during that year.
(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 section
212(d)(5) in the second preceding fiscal year-
(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 section 201(b)) 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).
2/
(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-
(B) the number computed under paragraph (2).
(2)
(A) The number computer 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 section 203(b) during that fiscal year.
(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 section 203(a) (relating to family-sponsored immigrants) during the previous fiscal year and the number of visas issued under that section during that year.
(e) Worldwide level of diversity immigrants.- The worldwide level of diversity immigrants is equal to 55,000 for each fiscal year.
4/ (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), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using the age of the alien on the date on which the petition is filed with the Attorney General under section
204 to classify the alien as an immediate relative under subsection (b)(2)(A)(i).
(2) AGE ON PARENT’S NATURALIZATION DATE- In the case of a petition under section
204 initially filed for an alien child’s classification as a family-sponsored immigrant under section
203(a)(2)(A) , based on the child’s parent being lawfully admitted for permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i), the determination described in paragraph (1) shall be made using the age of the alien on the date of the parent’s naturalization.
(3) AGE ON MARRIAGE TERMINATION DATE- In the case of a petition under section
204 initially filed for an alien’s classification as a family-sponsored immigrant under section
203(a)(3) , based on the alien’s being a married son or daughter of a citizen, if the petition is later converted, due to the legal termination of the alien’s marriage, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i) or as an unmarried son or daughter of a citizen under section
203(a)(1) , the determination described in paragraph (1) shall be made using the age of the alien on the date of the termination of the marriage.
5/ (4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.
FOOTNOTES FOR SECTION 201
FN1 This section was amended in its entirety by § 101(a) of IMMACT and further amended by § 302(a)(1) of MTINA.
FN 3 Language inserted at the end by section
1507(a)(3) of Public Law 106-386, dated October 28, 2000.
INA ACT 201 FN 4
FN 4 Paragraph (f) added by
section 2 of the Child Status Protection Act, Public Law
107-208 , dated August 6, 2002. Effective Date: The amendments made by this Act shall take effect on the date of the enactment of this Act (August 6, 2002) and shall apply to any alien who is a derivative beneficiary or any other beneficiary of–
(1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
(2) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or
(3) an application pending before the Department of Justice or the Department of State on or after such
FN 5 Section
805(b)(1) of Public Law 109-162 dated January 5, 2006, is amended by adding paragraph (4) to section 201(f) of the Immigration and Nationality Act.
FN 6 Section
568(c)(1) of Public Law 111-83, dated October 28, 2009, amended section 201(b)(2)(A)(i) by removing “for at least 2 years at the time of the citizen’s death”
(2) APPLICABILITY-
(A) IN GENERAL- The amendment made by paragraph (1) shall apply to all applications and petitions relating to immediate relative status under section
201(b)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(2)(A)(i)) pending on or after the date of the enactment of this Act.
(B) TRANSITION CASES- Transition cases can be found at section
568(2)(B) of Public Law 111-83.
————————————————————————————
INA: ACT 202 – NUMERICAL LIMITATION TO ANY SINGLE FOREIGN STATE
Sec. 202. [8 U.S.C. 1152]
(A) Except as specifically provided in paragraph (2) and in sections
101(a)(27) ,
201(b)(2)(A)(i) , and 203, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
(B)
1/ 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
1a/ 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 section 203 in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.
(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 section 203 for a calendar quarter exceeds the number of qualified immigrants who otherwise may be issued such a visa, paragraph (2) shall not apply to visas made available to such states or areas during the remainder of such calendar quarter.
(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 section
203(a) to immigrants described in section
203(a)(2)(A) in any fiscal year, 75 percent of the 2-A floor (as defined in clause (ii)) shall be issued without regard to the numerical limitation under paragraph (2).
(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 section 203(a) to immigrants described in section 203(a)(2) in the fiscal year.
(B) Treatment of remaining 25 percent for countries subject to subsection (e).-
(i) In general. – Of the visa numbers made available under section
203(a) to immigrants described in section
203(a)(2)(A) in any fiscal year, the remaining 25 percent of the 2-A floor shall be available in the case of a state or area that is subject to subsection (e) only to the extent that the total number of visas issued in accordance with subparagraph (A) to natives of the foreign state or area is less than the subsection (e) ceiling (as defined in clause (ii)).
(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 section 203(a) to immigrants who are natives of the state or area under section
203(a)(2) consistent with subsection (e).
(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) applies, the number of immigrant visas that may be made available to natives of the state or area under section
203(a)(2)(B) may not exceed –
(i) 23 percent of the maximum number of visas that may be made available under section 203(a) to immigrants of the state or area described in section 203(a)(2) consistent with subsection (e), or
(ii) the number (if any) by which the maximum number of visas that may be made available under section
203(a) to immigrants of the state or area described in section 203(a)(2) consistent with subsection (e) exceeds the number of visas issued under section
203(a)(2)(A) , 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) applies, if the total number of visas issued under section 203(a)(2) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(a)(2) consistent with subsection (e) (determined without regard to this paragraph), in applying paragraphs (3) and (4) of section 203(a) under subsection (e)(2) all visas shall be deemed to have been required for the classes specified in paragraphs (1) and (2) of such section.
(5)
2/ 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 section
203(b) for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.
(B) LIMITING FALL ACROSS FOR CERTAIN COUNTRIES SUBJECT TO SUBSECTION (e)- In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under section
203(b) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b)consistent with subsection (e) (determined without regard to this paragraph),in applying subsection (e) all visas shall be deemed to have been required for the classes of aliens specified in section 203(b).
(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) when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. F or the purposes of this Act 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) 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 estab lished under subsection (a)(2) 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 section
201(b) , shall be chargeable for the purpose of the limitation set forth in subsection (a), to the foreign state.
(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 section
203 to natives of any single foreign state or dependent area will exceed the numerical limitation specified in subsection (a)(2) in any fiscal year, in determining the allotment of immigrant visa numbers to natives under subsections (a) and (b) of section 203, visa numbers with respect to natives of that state or area shall be allocated (to the extent practicable and otherwise consistent with this section and section 203) in a manner so that
(1) the ratio of the visa numbers made available under section
203(a) to the visa numbers made available under section
203(b) is equal to the ratio of the worldwide level of immigration under section
201(c) to such level under section
201 (d);
(2) except as provided in subsection (a)(4), the proportion of the visa numbers made available under each of paragraphs (1) through (4) of section 203(a) is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(a), and
(3)
3/ except as provided in subsection (a)(5), the proportion of the visa numbers made available under each of paragraphs (1) through (5) of section
203(b) is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(b).
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 section
203(a) or
203(b) if there is insufficient demand for visas for such natives under section 203(b) or 203(a), respectively, or as limiting the number of visas that may be issued under section
203(a)(2)(A) pursuant to subsection (a)(4)(A).
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 section 203(a) or
203(b) if there is insufficient demand for visas for such natives under section 203(b) or
203(a) , respectively, or as limiting the number of visas that may be issued under section
203(a)(2)(A) pursuant to subsection (a)(4)(A).
FOOTNOTES FOR SECTION 202
INA: ACT 202 FN 1
FN 1 Added by §
633 of IIRIRA.
FN 1a Section
104(b)(1) of Public Law 106-313, dated October 17, 2000, amended parargaph (a)(2)
FN 2 Section
104(a) of Public Law 106-313, dated October 17, 2000, added paragraph (a)(5).
FN 3 Section
104(b)(2) of Public Law 106-313, dated October 17, 2000, amended parargaph (e)(3)
—————————————————————————————
INA: ACT 203 – ALLOCATION OF IMMIGRANT VISAS
Sec. 203. [8 U.S.C. 1153]
(a) Preference Allocation for Family-Sponsored Immigrants. – Aliens subject to the worldwide level specified in section
201(c) for family-sponsored immigrants shall be allotted visas as follows:
(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 section 201(d) for employment-based immigrants in a fiscal year shall be allotted visas as follows:
(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, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) (i)
1/ 1a/ 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) (I) 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) No permanent resident visa may be issued to an alien physician described in subclause (I) by the Secretary of State under section
204(b) , and the Attorney General may not adjust the status of such an alien physician from that of a nonimmigrant alien to that of a permanent resident alien under section
245 , until such time as the alien has worked full time as a physician for an aggregate of 5 years (not including the time served in the status of an alien described in section
101(a)(15)(J) ), 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.
(III) Nothing in this subparagraph may be construed to prevent the filing of a petition with the Attorney General for classification under section
204(a) , or the filing of an application for adjustment of status under section
245 , by an alien physician described in subclause (I) prior to the date by which such alien physician has completed the service described in subclause (II).
(IV) The requirements of this subsection do not affect waivers on behalf of alien physicians approved under section
203(b)(2)(B) before the enactment date of this subsection. In the case of a physician for whom an application for a waiver was filed under section 203(b)(2)(B) prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to section 203(b)(2)(B) 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 section
101(a)(15)(J) ) before a visa can be issued to the alien under section
204(b) or the status of the alien is adjusted to permanent resident under section
245 .
(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 section
212(a)(5)(A) .
(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 section
101(a)(27) (other than those described in subparagraph (A) or (B) thereof), of which not more than 5,000 may be made available in any fiscal year to special immigrants described in subclause (II) or (III) of section
101(a)(27)(C)(ii) ,
2/ and not more than 100 may be made available in any fiscal year to special immigrants, excluding spouses and children, who are described in section
101(a)(27)(M) .
(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
4/ enterprise (including a limited partnership)–
(i)
4/ in which such alien has invested (after the date of the enactment of the Immigration Act of 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and
(ii)
4/ 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
4/ 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 1/2 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)
4/ 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 section 101(a)(27)(K) in a fiscal year shall not be subject to the numerical limitations of this subsection or of section 202(a).
(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 section
101(a)(27)(K) .
(ii) Reduction in per country level. – The number of visas made available in each fiscal year to natives of a foreign state under section
202(a) shall be reduced by the number of visas made available in the previous fiscal year to special immigrants described in section
101(a)(27)(K) who are natives of the foreign state.
(iii) Reduction in employment-based immigrant classifications within per country ceiling. – In the case of a foreign state subject to section 202(e) in a fiscal year (and in the previous fiscal year), the number of visas made available and allocated to each of paragraphs (1) through (3) of this subsection in the fiscal year shall be reduced by 1/3 of the number of visas made available in the previous fiscal year to special immigrants described in section 101(a)(27)(K) who are natives of the forei gn state.(C)[Subparagraph (C) was stricken by Sec. 212(b) of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L.
103-416 , 108 Stat. 4314, Oct. 25, 1994)]
———————————————————————————————–
Act 203(c)
(c) Diversity Immigrants. –
(1) In general. – Except as provided in paragraph (2), aliens subject to the worldwide level specified in section
201 (e) for diversity immigrants shall be allotted visas each fiscal year as follows:
(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 section
201(a) (other than paragraph (3) thereof) or who were admitted or otherwise provided lawful permanent resident status as an immediate relative or other alien described in section
201(b)(2) .
(B) Identification of high-admission and low-admission regions and high-admission and low-admission states. – The Attorney General –
(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 otherwis e 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:
(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 section
101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.
(e) Order of Consideration. –
(1) Immigrant visas made available under subsection (a) or (b) 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 section
101(a)(27)(D) , with the Secretary of State) as provided in section
204(a) .
(2) Immigrant visa numbers made available under subsection (c) (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 section
201(b)(2) or in subsection (a), (b), or (c) of this section, the consular officer shall not grant such status until he has been authorized to do so as provided by section
204 .
(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) 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 vi sa 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.
3/ (h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-
(1) IN GENERAL.– For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section
101(b)(1) shall be made using–
(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), 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), a petition filed under section
204 for classification of an alien child under subsection (a)(2)(A); or
(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section
204 for classification of the alien’s parent under subsection (a), (b), or (c).
(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), 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.
(4)
5/ APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.
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FOOTNOTES FOR SECTION 203
FN 1
Section 5 of Public Law 106-95, dated November 12, 1999, amended section
203(b)(2)(B) in its entirety.
FN1a Section 203(b)(2)(B) is amended in its entirety by section
117 , of Public Law
106-113 , Appendix A (H.R. 3421) dated November 29, 1999.
FN 2 Section
1(b)(1) of Public Law 106-536, dated November 22, 2000, amended section 203(b)(4). The amendment shall apply to visas made available in any fiscal year beginning on or after October 1, 2000.
FN 3 Paragraph (h) added by
section 3 of the Child Status Protection Act, Public Law
107-208 , dated August 6, 2002. Effective Date: The amendments made by this Act shall take effect on the date of the enactment of this Act (August 6, 2002) and shall apply to any alien who is a derivative beneficiary or any other beneficiary of–
(1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
(2) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or
(3) an application pending before the Department of Justice or the Department of State on or after such date.
INA: ACT 203 FN 4
FN 4 Section
203(b)(5)(A) and
(B)(i) were amended by section
11036(a)(1) and
(2) of the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273, dated November 2, 2002.
(c) Effective Date.–The amendments made by section
11036 shall take effect on the date of the enactment of this Act (Public Law
107-273 dated November 2, 2002) and shall apply to aliens having any of the following petitions pending on or after the date of the enactment of this Act:
(1) A petition under section
204(a)(1)(H) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any predecessor provision), with respect to status under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)).
(2) A petition under section
216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) to remove the conditional basis of an alien’s permanent resident status.
Subparagraph (D) added by section
11035 of the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273, dated November 2, 2002.
FN 5 Section
805(b)(2) of Public Law 109-162, dated January 5, 2006, amended section 203(h) of the Immigration and Nationality Act by adding paragraph (4).
—————————————————————————————–
INA: ACT 204 – PROCEDURE FOR GRANTING IMMIGRANT VISAS
Sec. 204. [8 U.S.C. 1154]
(a) (1) (A) (i) 4a Except as provided in clause (viii), 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 section 203(a) or to an immediate relative status under section 201(b)(2)(A)(i) may file a petition with the Attorney General for such classification.
(ii) An alien spouse described in the second sentence of section 201(b)(2)(A)(i) also may file a petition with the Attorney General under this subparagraph for classification of the alien (and the alien’s children) under such section.
(iii) 4 (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 Act 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 section 201(b)(2)(A)(i) or who would have been so classified but for the bigamy of the citizen of the United States that the alien intended to marry; and
(dd) who has resided with the alien’s spouse or intended spouse.
(iv) 5 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 section 201(b)(2)(A)(i), and who resides, or has resided in the past, with the citizen parent may file a petition with the Attorney General under this subparagraph for classification of the alien (and any child of the alien) under such section if the alien demonstrates to the Attorney General that the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien’s citizen parent. For purposes of this clause, residence includes any period of visitation.
(v) 6 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 section 101(a) of title 10, United States Code); or
(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) 6a 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 section 245 or obtain status as a lawful permanent resident based on the approved self-petition under such clauses.
(vii) 6ab An alien may file a petition with the Secretary of Homeland Security under this subparagraph for classification of the alien under section 201(b)(2)(A)(i) if the alien–
(I) is the parent of a citizen of the United States or was a parent of a citizen of the United States who, within the past 2 years, lost or renounced citizenship status related to an incident of domestic violence or died;
(II) is a person of good moral character;
(III) is eligible to be classified as an immediate relative under section 201(b)(2)(A)(i);
(IV) resides, or has resided, with the citizen daughter or son; and
(V) demonstrates that the alien has been battered or subject to extreme cruelty by the citizen daughter or son.
(viii) 4a (I) Clause (i) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in clause (i) is filed.
(II) For purposes of subclause (I), the term “specified offense against a minor” is defined as in section 111 of the Adam Walsh Child Protection and Safety Act of 2006.
(B) (i) (I) Except as provided in subclause (II), any alien 7a lawfully admitted for permanent residence claiming that an alien is entitled to a classification by reason of the relationship described in section 203(a)(2) may file a petition with the Attorney General for such classification.
(I) 7a Subclause (I) shall not apply in the case of an alien lawfully admitted for permanent residence who has been convicted of a specified offense against a minor (as defined in subparagraph (A)(viii)(II)), unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that such person poses no risk to the alien with respect to whom a petition described in subclause (I) is filed.
(ii) 7 (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 section 203(a)(2)(A) and if the alien demonstrates to the Attorney General that–
(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 Act 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 section 203(a)(2)(A) or who would have been so classified but for the bigamy of the lawful permanent resident of the United States that the alien intended to marry; and
(dd) who has resided with the alien’s spouse or intended spouse.
(iii) 8 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 section 203(a)(2)(A), and who resides, or has resided in the past, with the alien’s permanent resident alien parent may file a petition with the Attorney General under this subparagraph for classification of the alien (and any child of the alien) under such section if the alien demonstrates to the Attorney General that the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien’s permanent resident parent.
(iv) 9 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 section 101(a) of title 10, United States Code); or
(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) 9a (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 section 245 or obtain status as a lawful permanent resident based on an approved self-petition under clause (ii) or (iii).
(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) 10 Notwithstanding section 101(f), an act or conviction that is waivable with respect to the petitioner for purposes of a determination of the petitioner’s admissibility under section 212(a) or deportability under section 237(a) shall not bar the Attorney General from finding the petitioner to be of good moral character under subparagraph (A)(iii),(A)(iv), (B)(ii), or (B)(iii) if the Attorney General finds that the act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty.
(D) 10 (i)(I) Any child who attains 21 years of age who has filed a petition under clause (iv) of section 204(a)(1)(A) 10a or section 204(a)(1)(B)(iii) 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 section 203(a), whichever paragraph is applicable, with the same priority date assigned to the self-petition filed under clause (iv) of section 204(a)(1)(A). No new petition shall be required to be filed.
(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) 10a a VAWA self-petitioner with the same priority date as that assigned to the petitioner in any petition described in clause (ii). No new petition shall be required to be filed.
(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.
10 (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.
10a (iv) Any alien who benefits from this subparagraph may adjust status in accordance with subsections (a) and (c) of section 245 as an alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii).
10a (v) For purposes of this paragraph, an individual who is not less than 21 years of age, who qualified to file a petition under subparagraph (A)(iv) or (B)(iii) 10a as of the day before the date on which the individual attained 21 years of age, and who did not file such a petition before such day, shall be treated as having filed a petition under such subparagraph as of such day if a petition is filed for the status described in such subparagraph before the individual attains 25 years of age and the individual shows that the abuse was at least one central reason for the filing delay. Clauses (i) through (iv) of this subparagraph shall apply to an individual described in this clause in the same manner as an individual filing a petition under subparagraph (A)(iv) or (B)(iii). 10a
(E) 10 Any alien desiring to be classified under section 203(b)(1)(A), or any person on behalf of such an alien, may file a petition with the Attorney General for such classification.
(F) 10 Any employer desiring and intending to employ within the United States an alien entitled to classification under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) may file a petition with the Attorney General for such classification.
(G) (i) 10 (i) Any alien (other than a special immigrant under section 101(a)(27)(D)) desiring to be classified under section 203(b)(4), or any person on behalf of such an alien, may file a petition with the Attorney General for such classification.
(ii) Aliens claiming status as a special immigrant under section 101(a)(27)(D) may file a petition only with the Secretary of State and only after notification by the Secretary that such status has been recommended and approved pursuant to such section.
(H) 10 Any alien desiring to be classified under section 203(b)(5) may file a petition with the Attorney General for such classification.
(I) 10 (i) Any alien desiring to be provided an immigrant visa under section 203(c) may file a petition at the place and time determined by the Secretary of State by regulation. Only one such petition may be filed by an alien with respect to any petitioning period established. If more than one petition is submitted all such petitions submitted for such period by the alien shall be voided.
(ii)(I) The Secretary of State shall designate a period for the filing of petitions with respect to visas which may be issued under section 203(c) for the fiscal year beginning after the end of the period.
(II) Aliens who qualify, through random selection, for a visa under section 203(c) shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected.
(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.
(iv) 10ad Each petition to compete for consideration for a visa under section 1153(c) of this title shall be accompanied by a fee equal to $30. All amounts collected under this clause shall be deposited into the Treasury as miscellaneous receipts.’: Provided, that the department of State, in consultation with the Department of Homeland Security, shall report to the Committees on Appropriations of the Senate and the House of Representatives not later than 90 days after the date of enactment of this Act on the steps being taken to implement the recommendations of GAO-07-1174.
(J) 10 In acting on petitions filed under clause (iii) or (iv) of subparagraph (A) or clause (ii) or (iii) of subparagraph (B),10 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.
(K) 10ab Upon the approval of a petition as a VAWA self-petitioner, the alien —
(i) is eligible for work authorization; and
(ii) may be provided an ‘employment authorized’ endorsement or appropriate work permit incidental to such approval.
(L) 10ac Notwithstanding the previous provisions of this paragraph, an individual who was a VAWA petitioner or who had the status of a nonimmigrant under subparagraph (T) or (U) of section 101(a)(15) may not file a petition for classification under this section or section 214 to classify any person who committed the battery or extreme cruelty or trafficking against the individual (or the individual’s child) which established the individual’s (or individual’s child) eligibility as a VAWA petitioner or for such nonimmigrant status.
(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 section 203(a)(2), for an alien as a spouse of an alien lawfully admitted for permanent residence.
(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.
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Act 204(b)
(b)
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 section
203(b)(2) or
203(b)(3) , the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 201(b) or is eligible for preference under subsection (a) or (b) of section 203, approve the petition and forward one copy thereof to the Department of State. The Secretary of State shall then authorize the consular officer concerned to grant the preference status.
(c)
Notwithstanding the provisions of subsection (b) 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)
(1)
1 Notwithstanding the provisions of subsections (a) and (b) no petition may be approved on behalf of a child defined in section subparagraph (F) or (G) of section 101(b)(1) 1 unless a valid home-study has been favorably recommended by an agency of the State of the child’s proposed residence, or by an agency authorized by that State to conduct such a study, or, in the case of a child adopted abroad, by an appropriate public or private adoption agency which is licensed in the United States.
(2)
1 Notwithstanding the provisions of subsections (a) and (b), no petition may be approved on behalf of a child defined in section 101(b)(1)(G) unless the Secretary of State has certified that the central authority of the child’s country of origin has notified the United States central authority under the convention referred to in such section 101(b)(1)(G) that a United States citizen habitually resident in the United States has effected final adoption of the child, or has been granted custody of the child for the purpose of emigration and adoption, in accordance with such convention and the Intercountry Adoption Act of 2000.
(e)
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 the United States as an immigrant under subsection (a), (b), or (c) of section 203 or as an immediate relative under section 201(b) if upon his arrival at a port of entry in the United States he is found not to be entitled to such classification.
(f)
(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 section 201(b), 203(a)(1), or
203(a)(3) , as appropriate. After an investigation of the facts of each case the Attorney General shall, if the conditions described in paragraph (2) are met, approve the petition and forward one copy to the Secretary of State.
(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 the date of the enactment of this subsection, 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 section 673(2) of the Omnibus Budget Reconciliation Act of 1981 and as revised by the Secretary of Health and Human Services under the second and third sentences of such section) for a family of the same size as the size of the alien’s family.
(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, United States Code.
(g) Notwithstanding subsection (a), except as provided in section 245(e)(3), a petition may not be approved to grant an alien immediate relative status or preference status by reason of a marriage which was entered into during the period described in section 245(e)(2) , until the alien has resided outside the United States for a 2-year period beginning after the date of the marriage.
(h) The legal termination of a marriage may not be the sole basis for revocation under section 205 of a petition filed under subsection (a)(1)(B)(ii) pursuant to conditions described in subsection (a)(1)(A)(iii)(I). 11 Remarriage of an alien whose petition was approved under section 204(a)(1)(B)(ii) or 204(a)(1)(A)(iii) or marriage of an alien described in clause (iv) or (vi) of section 204(a)(1)(A) or in section 204(a)(1)(B)(iii) shall not be the basis for revocation of a petition approval under section 205.
(i) 2 PROFESSIONAL ATHLETES. –
(1) In General.- A petition under subsection (a)(4)(D) 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) Definition. – 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) 3 JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE-
A petition under subsection (a)(1)(D)for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.
12 (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 section 203(a)(2)(B) ,based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
(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.
(l) 13 SURVIVING RELATIVE CONSIDERATION FOR CERTAIN PETITIONS AND APPLICATIONS- (1) IN GENERAL- An alien described in paragraph (2) who resided in the United States at the time of the death of the qualifying relative and who continues to reside in the United States shall have such petition described in paragraph (2), or an application for adjustment of status to that of a person admitted for lawful permanent residence based upon the family relationship described in paragraph (2), and any related applications, adjudicated notwithstanding the death of the qualifying relative, unless the Secretary of Homeland Security determines, in the unreviewable discretion of the Secretary, that approval would not be in the public interest.
(2) 14 ALIEN DESCRIBED- An alien described in this paragraph is an alien who, immediately prior to the death of his or her qualifying relative, was– (A) the beneficiary of a pending or approved petition for classification as an immediate relative (as described in section 201(b)(2)(A)(i));
(B) the beneficiary of a pending or approved petition for classification under section 203 (a) or (d);
(C) a derivative beneficiary of a pending or approved petition for classification under section 203(b) (as described in section 203(d));
(D) the beneficiary of a pending or approved refugee/asylee relative petition under section 207 or 208;
(E) an alien admitted in `T’ nonimmigrant status as described in section 101(a)(15)(T)(ii) or in `U’ nonimmigrant status as described in section 101(a)(15)(U)(ii);
(F) a child of an alien who filed a pending or approved petition for classification or application for adjustment of status or other benefit specified in section 101(a)(51) as a VAWA self-petitioner; or
(G) an asylee (as described in section 208(b)(3)).
FOOTNOTES FOR SECTION 204
FN 1 Section
302(b) of Public Law 106-279, dated October 6, 2000, amended paragraph (d).
FN 3 Section
106(c) of Public Law 106-313, dated October 17, 2000, added subparagraph (j).
FN 4 Section
1503(b)(1)(A) of Public Law 106-386, dated October 28, 2000, amended section 204(a)(1)(A)(iii) in its entirety.
FN 4a Section 402(a)(1) of Public Law 109-402, dated July 27, 2006, amended section 204(a)(1)(A)(i) by striking: ‘Any’ and inserting ‘Except as provided in clause (viii), any’
Section 402(a)(2) of Public Law 109-402, dated July 27, 2006, amended section 204(a)(1)(A) by adding clause (viii).
FN 5 Section
1503(b)(2) of Public Law 106-386, dated October 28, 2000, amended section 204(a)(1)(A)(iv) in its entirety.
FN 6 Section
1503(b)(3) of Public Law 106-386, dated October 28, 2000, added a new section 204(a)(1)(A)(v).
FN 6a Section
1507(a)(1) of Public Law 106-386, dated October 28, 2000, added a new section 204(a)(1)(A)(vi).
FN 6ab Section
816 of Public Law 109-162, dated January 5, 2006, amended section 204(a)(1)(A) of the Immigration and Nationality Act by adding clause (vii).
FN 7 Section
1503(c)(1) of Public Law 106-386, dated October 28, 2000, amended section 204(a)(1)(B)(ii) in its entirety.
7a/ Section 402(a)(3)(A) of Public Law 109-402, dated July 27, 2006, amended section 204(a)(1)(B)(i) by striking: ‘(B)(i) Any alien’ and inserting the following: ‘(B)(i)(I) Except as provided in subclause (II), any alien’
Section 402(a)(3)(B) of Public Law 109-402, dated July 27, 2006, amended section 204(a)(1)(B)(i)by adding subclause I. ( Note: There are now two subclauses I under section 204(a)(1)(B)(i)).
FN 8 Section
1503(c)(2) of Public Law 106-386, dated October 28, 2000, amended section 204(a)(1)(B)(iii) in its entirety.
FN 9 Section
1503(c)(3) of Public Law 106-386, dated October 28, 2000, added section 204(a)(1)(B)(iv).
FN 9a Section
1507(a)(2) of Public Law 106-386, dated October 28, 2000, added section 204(a)(1)(B)(v)
FN 10 Section
1503(d)(1) of Public Law
106-386 , dated October 28, 2000, redesignated subparagraphs (C) through (H) as subparagraphs (E) through (J). Section
1503(d)(2) added new subparagraphs (C) and (D).
Subclause 204(a)(1)(D)(iii) was added by
section 7 of the Child Status Protection Act, Public Law
107-208 , dated August 6, 2002. Effective Date: The amendments made by this Act shall take effect on the date of the enactment of this Act (August 6, 2002) and shall apply to any alien who is a derivative beneficiary or any other beneficiary of–
(1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
(2) a petition for classification under section
204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or
(3) an application pending before the Department of Justice or the Department of State on or after such date.
FN 10a Section
805(a)(1) of Public Law 109-162 dated January 5, 2006, amended section 204(a)(1)(D) of the Immigration and Nationality Act by making several technical amendments. Section
805(a)(2) of Public Law 109-162 added clause (iv).
Section
805(c) of Public Law 109-162, further amended section 204(a)(1)(D) by adding clause (v).
Section
6(a) of Public Law 109-271, dated August 12, 2006, amended clause (v) by adding: “or (B)(iii)” after “(A)(iv)”
FN 10ab Section
804(b) of Public Law 109-162, dated January 5, 2006, amended section 204(a)(1) of the Immigration and Nationality Act by adding paragraph (K).
FN 10ac Section
814(e) of Public Law 109-162, dated January 5, 2006, amended section 204(a)(1) of the Immigration and Nationality Act by adding paragraph (L).
FN 11 Language inserted at the end by section
1507(b) of Public Law 106-386, dated October 28, 2000.
FN 12 Paragraph (k) added by
section 6 of the Child Status Protection Act, Public Law
107-208 , dated August 6, 2002. Effective Date: The amendments made by this Act shall take effect on the date of the enactment of this Act (August 6, 2002) and shall apply to any alien who is a derivative beneficiary or any other beneficiary of–
(1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
(2) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or
(3) an application pending before the Department of Justice or the Department of State on or after such date.
FN 13 Section
568(d)(1) of Public Law 111-83, dated October 28, 2009, added a new paragraph (l) to section 204 of the Act.
CONSTRUCTION- Nothing in the amendment made by section
568(d)(1) of Public Law 111-83 may be construed to limit or waive any ground of removal, basis for denial of petition or application, or other criteria for adjudicating petitions or applications as otherwise provided under the immigration laws of the United States other than ineligibility based solely on the lack of a qualifying family relationship as specifically provided by such amendment.
INA: ACT 204 FN 14
FN 14 Section 803 of
Public Law 113-4, dated March 7, 2013, amended section 204(l)(2) of the Immigration and Nationality Act by, by striking “or” at the end of subparagraph (e); redesignating subparagraph (F) as subparagraph (G); and inserting after subparagraph (E), “(F) a child of an alien who filed a pending or approved petition for classification or application for adjustment of status or other benefit described in section 101(a)(51) as a VAWA self-petitioner; or”.
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INA: ACT 205 – REVOCATION OR APPROVAL OF PETITIONS
Sec. 205. [8 U.S.C. 1155] The Secretary of Homeland Security
1/ may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.
FOOTNOTES FOR SECTION 205
FN 1 Section
5304(c)(1) and
(2) of Public Law 108-458 amended section 205 by (1) striking “Attorney General” and inserting “Secretary of Homeland Security”; and (2) by striking the final two sentences.
(d) Effective Date- The amendments made by this section shall take effect on the date of enactment of this Act (Public Law
108-458 ) and shall apply to revocations under sections
205 and
221(i) of the Immigration and Nationality Act (8 U.S.C. 1155, 1201(i)) made before, on, or after such date.
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INA: ACT 206 – UNUSED IMMIGRANT VISAS
Sec. 206. [8 U.S.C. 1156] 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.
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INA: ACT 207 – ANNUAL ADMISSION OF REFUGEES AND ADMISSION OF EMERGENCY SITUATION REFUGEES
Sec. 207. [8 U.S.C. 1157]
(a)
(1) Except as provided in subsection (b), 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)), 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), 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.
(b) 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), 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)
(1) Subject to the numerical limitations established pursuant to subsections (a) and (b), 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 Act.
3/ (2) (A) A spouse or child (as defined in section
101(b)(1)(A) ,
(B) ,
(C) ,
(D) , or
(E) ) of any refugee who qualifies for admission under paragraph (1) shall, if not otherwise entitled to admission under paragraph (1) and if not a person described in the second sentence of section
101(a)(42) , be entitled to the same admission status as such refugee if accompanying, or following to join, such refugee and if the spouse or child is admissible (except as otherwise provided under paragraph (3)) as an immigrant under this Act. Upon the spouse’s or child’s admission to the United States, such admission shall be charged against the numerical limitation established in accordance with the appropriate subsection under which the refugee’s admission is charged.
3/ (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 section
212(a) shall not be applicable to any alien seeking admission to the United States under this subsection, and the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Any such waiver by the Attorney General shall be in writing and shall be granted only on an individual basis following an investigation. The Attorney General shall provide for the annual reporting to Congress of the number of waivers granted under this paragraph in the previous fiscal year and a summary of the reasons for granting such waivers.
(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 section
101(a)(42) at the time of the alien’s admission.
(d)
(1) Before the start of each fiscal year the President shall report to the Committee 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) or with respect to the admission of refugees in response to an emergency refugee situation under subsection (b), 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), 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), 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) 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 f or 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.
2/ (f)(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 section 208.
(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.
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FOOTNOTES FOR SECTION 207
FN 2 Subsection (f) added by
section 602(a) of the International Religious Freedom Act of 1998, Pub. L. 105-292.
FN 3 Existing text of paragraph (c)(2) was designated as paragraph (c)(2)(A) and a new paragraph (c)(2)(B) was added by
section 5 of the Child Status Protection Act, Public Law
107-208 , dated August 6, 2002. Effective Date: The amendments made by this Act shall take effect on the date of the enactment of this Act (August 6, 2002) and shall apply to any alien who is a derivative beneficiary or any other beneficiary of–
(1) a petition for classification under section
204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
(2) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or
(3) an application pending before the Department of Justice or the Department of State on or after such date.
FN 4 Section
101(g)(2) of Public Law 109-13, amended section 207(a) by striking paragraph (5)
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Sec. 208.
(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, section 235(b).
(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 po litical 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 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 conditions. – 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 the application within the period specified in subparagraph (B).
(E)
7/ APPLICABILITY- Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))).
(3) Limitation on judicial review.3/4No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).
(b) Conditions for Granting Asylum. –
(1) In general. –
4/ (A) ELIGIBILITY- The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by
4/ the Secretary of Homeland Security or the Attorney General under this section if
4/ the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section
101(a)(42)(A) .
(i) IN GENERAL- The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section
101(a)(42)(A) .To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.
(ii) SUSTAINING BURDEN- The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
(iii) CREDIBILITY DETERMINATION- Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal c onsistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.
(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
5/ described in subclause (I), (II), (III), (IV), or (VI)
2/ of section
212(a)(3)(B)(i) or section
237(a)(4)(B) (relating to terrorist activity), unless, in the case only of an alien
5/ described in subclause (IV) of section
212(a)(3)(B)(i) , the Attorney General determines, in the Attorney General’s discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or
(vi) the alien was firmly resettled in another country prior to arriving in the United States.
(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/ (3) TREATMENT OF SPOUSE AND CHILDREN-
(A) IN GENERAL- A spouse or child (as defined in section
101(b)(1)(A) ,
(B) ,
(C) ,
(D) , or
(E) ) of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.
(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 section
209(b)(3) , if the alien attained 21 years of age after such application was filed but while it was pending.
(C)
8/ INITIAL JURISDICTION- An asylum officer (as defined in section
235(b)(1)(E) ) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))), regardless of whether filed in accordance with this section or section
235(b) .
(1) In general.- In the case of an alien granted asylum under subsection (b), 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) 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) owing to a fundamental change in circumstances;
(B) the alien meets a condition described in subsection (b)(2);
(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 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
212(a) and
237(a) , and the alien’s removal or return shall be directed by the Attorney General in accordance with sections
240 and
241 .
(1) Applications. – The Attorney General shall establish a procedure for the consideration of asylum applications filed under subsection (a). 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 section 209(b). Such fees shall not exceed the Attorney General’s costs in adjudicating the applications. The Attorney General may provide for the assessment and payment of such fees over a period of time or by installments. Nothing in this paragraph shall be construed to require the Attorney General to charge fee s for adjudication services provided to asylum applicants, or to limit the authority of the Attorney General to set adjudication and naturalization fees in accordance with section 286(m).
(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 section 240, whichever is later; and
(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 section 240, the application may be dismissed or the applicant may be otherwise sanctioned for such failure.
(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 Act.
(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 Act, 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.
(e)
6/ Commonwealth of the Northern Mariana Islands-
The provisions of this section and section
209(b) shall apply to persons physically present in the Commonwealth of the Northern Mariana Islands or arriving in the Commonwealth (whether or not at a designated port of arrival and including persons who are brought to the Commonwealth after having been interdicted in international or United States waters) only on or after January 1, 2014.
——————————————————————————————————
INA: ACT 209 -ADJUSTMENT OF STATUS OF REFUGEES
Sec. 209. [8 U.S.C. 1159]
(a)
(1) Any alien who has been admitted to the United States under section
207 –
(A) whose admission has not been terminated by the
2/ Secretary of Homeland Security or the Attorney General pursuant to such regulations as the
2/ Secretary of Homeland Security or 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 Department of Homeland Security
2/ for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of sections
235 ,
240 , and
241 .
(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)) as an immigrant under this Act at the time of the alien’s inspection and examination shall, notwithstanding any numerical limitation specified in this Act, 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)
1/ 3/ The Secretary of Homeland Security or the Attorney General, in the Secretary’s or the Attorney General’s discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who-
(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 section
101(a)(42)(A) or a spouse or child of such a refugee,
(4) is not firmly resettled in any foreign country, and
(5) is admissible (except as otherwise provided under subsection (c)) as an immigrant under this Act at the time of examination for adjustment of such alien. Upon approval of an application under this subsection, the
3/ Secretary of Homeland Security or 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) The provisions of paragraphs (4), (5), and (7)(A) of section
212(a) shall not be applicable to any alien seeking adjustment of status under this section, and the
4/ Secretary of Homeland Security or the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.
FOOTNOTES FOR SECTION 209
FN 1
Section 128 of Pub. L. 105-277 provides as follows:
(a) The numerical limitation set forth in
section 209(b) of the Immigration and Nationality Act (8 U.S.C. 1159(b)) shall not apply to any alien described in subsection (b).
(b) An alien described in subsection (a) is an alien who was a United States Government employee, employee of a nongovernmental organization based in the United States, or other Iraqi national who was moved to Guam by the United States Government in 1996 or 1997 pursuant to an arrangement made by the United States Government, and who was granted asylum in the United States under
section 208(a) of the Immigration and Nationality Act (8 U.S.C. 1158(a)).
FN 2 Section
101(g)(1)(A) of Public Law 109-13 amended section 209(a)(1).
FN 3 Section
101(g)(1)(B) of Public Law 109-13 revised section 209(b) introductory text and amended section 209(b)(5).
FN 4 Section
101(g)(1)(C) of Public Law 109-13 amended section 209(b)
————————————————————————————————————
INA: ACT 210 – SPECIAL AGRICULTURAL WORKERS
Sec. 210. [8 U.S.C. 1160]
(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 the date of enactment of this section.
(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).
(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-months 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 dat e 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 Act 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 section
212(a)(6)(C)(i) , or
(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), 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 section
101(a)(20) ), other than under any provision of the immigration laws.
(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) 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 pr ovisions 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 section 209 or 245, Public Law 89-732, or Public Law 95-145.
(3) Proof of eligibility.-
(A) In general.-An alien may establish that he meets the requirement of subsection (a)(1)(B)(ii) 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) 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)).
(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) 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)
1/ 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), 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, 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).
(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, United States Code, 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 section
212(a)(6)(C)(i) .
(c) Waiver of Numerical Limitations and Certain Grounds for Exclusion.-
(1) Numerical limitations do not apply.-The numerical limitations of sections 201 and 202 shall not apply to the adjustment of aliens to lawful permanent resident status under this section.
(2) Waiver of grounds for exclusion.-In the determination of an alien’s admissibility under subsection (a)(1)(C)-
(A) Grounds of exclusion not applicable.-The provisions of paragraphs (5) and (7)(A) of section
212(a) shall not apply.
(B) Waiver of other grounds.-
(i) In general.-Except as provided in clause (ii), the Attorney General may waive any other provision of section 212(a) in the case of individual aliens for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.
(ii) Grounds that may not be waived.-The following provisions of section 212(a) may not be waived by the Attorney General under clause (i):
(I) Paragraph (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 marijuana.
(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 section 212(a)(4) if the alien demonstrates a history of employment in the United States evidencing self-support without reliance on public cash assistance.
(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) and who can establish a nonfrivolous case of eligibility to have his status adjusted under subsection (a) (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 f iling 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) 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) 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) 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) 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 provid ed in this Act.
(B) During the application period described in subsection (a)(1)(A) any alien who has filed an application for adjustment of status within the United States as provided in subsection (b)(1)(A) pursuant to the provision of
8 C.F.R . 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 fo r 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.
(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 section 106 (as in effect before October 1, 1996).
(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), and notwithstanding any other provision of law, the alien is not eligible for aid under a State plan approved under part A of title IV of the Social Security Act. Notwithstanding the previous sentence, in the case of an alien who would be eligible for aid under a S tate plan approved under part A of title IV of the Social Security Act but for the previous sentence, the provisions of paragraph (3) of section 245A(h) shall apply in the same manner as they apply with respect to paragraph (1) of such section and, for this purpose, any reference in section
245A(h)(3) to paragraph (1) is deemed a reference to the previous sentence.
(g) Treatment of Special Agricultural Workers.-For all purposes (subject to subsections (a)(5) and (f)) 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 section
101(a)(20) ).
(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.
FOOTNOTES FOR SECTION 210
FN 1 The final sentence of paragraph (6) was first amended by § 384 of IIRIRA, which was effective for “offenses occurring on or after the date of the enactment of this Act.” However,
§ 623(b) of IIRIRA rewrites the entire paragraph as shown. The language that was overwritten read as follows: “Anyone who uses, publishes, or permits information to be examined in violation of this paragraph shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more than $5,000 for each violation.” See also, section 245A(c) as amended by § 623 of IIRIRA.
————————————————————————————————–
INA: ACT 210A – DETERMINATION OF AGRICULTURAL LABOR SHORTAGES ADN ADMISSION OF ADDITIONAL SPECIAL AGRICULTURAL WORKERS
Sec. 210A. [8 U.S.C. 1161] [Sec. 210A was repealed by Sec. 219(ee)(1) of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. 103-416, 108 Stat. 4319, Oct. 25, 1994); it would appear that this amendment was effective as of November 29, 1990 (namely as if included in the enactment of the Immigration Act of 1990), under Sec. 219(dd) of Pub. L.
103-416 .]
CHAPTER 2 – QUALIFICATIONS FOR ADMISSION OF ALIENS; TRAVEL CONTROL OF CITIZENS AND ALIENS
\ slb \ SERVICE LAW BOOKS MENU \ IMMIGRATION AND NATIONALITY ACT \ INA: ACT 210A – DETERMINATION OF AGRICULTURAL LABOR SHORTAGES ADN ADMISSION OF ADDITIONAL SPECIAL AGRICULTURAL WORKERS
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