From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 20, 2004]
[Document not affected by Public Laws enacted between
January 20, 2004 and December 23, 2004]
[CITE: 8USC1182]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER 12--IMMIGRATION AND NATIONALITY
SUBCHAPTER II--IMMIGRATION
Part II--Admission Qualifications for Aliens; Travel Control of Citizens
and Aliens
Sec. 1182. Inadmissible aliens
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens who are
inadmissible under the following paragraphs are ineligible to receive
visas and ineligible to be admitted to the United States:
(1) Health-related grounds
(A) In general
Any alien--
(i) who is determined (in accordance with regulations
prescribed by the Secretary of Health and Human Services) to
have a communicable disease of public health significance,
which shall include infection with the etiologic agent for
acquired immune deficiency syndrome,
(ii) except as provided in subparagraph (C), who seeks
admission as an immigrant, or who seeks adjustment of status
to the status of an alien lawfully admitted for permanent
residence, and who has failed to present documentation of
having received vaccination against vaccine-preventable
diseases, which shall include at least the following
diseases: mumps, measles, rubella, polio, tetanus and
diphtheria toxoids, pertussis, influenza type B and
hepatitis B, and any other vaccinations against vaccine-
preventable diseases recommended by the Advisory Committee
for Immunization Practices,
(iii) who is determined (in accordance with regulations
prescribed by the Secretary of Health and Human Services in
consultation with the Attorney General)--
(I) to have a physical or mental disorder and
behavior associated with the disorder that may pose, or
has posed, a threat to the property, safety, or welfare
of the alien or others, or
(II) to have had a physical or mental disorder and a
history of behavior associated with the disorder, which
behavior has posed a threat to the property, safety, or
welfare of the alien or others and which behavior is
likely to recur or to lead to other harmful behavior, or
(iv) who is determined (in accordance with regulations
prescribed by the Secretary of Health and Human Services) to
be a drug abuser or addict,
is inadmissible.
(B) Waiver authorized
For provision authorizing waiver of certain clauses of
subparagraph (A), see subsection (g) of this section.
(C) Exception from immunization requirement for adopted children
10 years of age or younger
Clause (ii) of subparagraph (A) shall not apply to a child
who--
(i) is 10 years of age or younger,
(ii) is described in section 1101(b)(1)(F) of this
title, and
(iii) is seeking an immigrant visa as an immediate
relative under section 1151(b) of this title,
if, prior to the admission of the child, an adoptive parent or
prospective adoptive parent of the child, who has sponsored the
child for admission as an immediate relative, has executed an
affidavit stating that the parent is aware of the provisions of
subparagraph (A)(ii) and will ensure that, within 30 days of the
child's admission, or at the earliest time that is medically
appropriate, the child will receive the vaccinations identified
in such subparagraph.
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general
Except as provided in clause (ii), any alien convicted
of, or who admits having committed, or who admits committing
acts which constitute the essential elements of--
(I) a crime involving moral turpitude (other than a
purely political offense) or an attempt or conspiracy to
commit such a crime, or
(II) a violation of (or a conspiracy or attempt to
violate) any law or regulation of a State, the United
States, or a foreign country relating to a controlled
substance (as defined in section 802 of title 21),
is inadmissible.
(ii) Exception
Clause (i)(I) shall not apply to an alien who committed
only one crime if--
(I) the crime was committed when the alien was under
18 years of age, and the crime was committed (and the
alien released from any confinement to a prison or
correctional institution imposed for the crime) more
than 5 years before the date of application for a visa
or other documentation and the date of application for
admission to the United States, or
(II) the maximum penalty possible for the crime of
which the alien was convicted (or which the alien admits
having committed or of which the acts that the alien
admits having committed constituted the essential
elements) did not exceed imprisonment for one year and,
if the alien was convicted of such crime, the alien was
not sentenced to a term of imprisonment in excess of 6
months (regardless of the extent to which the sentence
was ultimately executed).
(B) Multiple criminal convictions
Any alien convicted of 2 or more offenses (other than purely
political offenses), regardless of whether the conviction was in
a single trial or whether the offenses arose from a single
scheme of misconduct and regardless of whether the offenses
involved moral turpitude, for which the aggregate sentences to
confinement were 5 years or more is inadmissible.
(C) Controlled substance traffickers
Any alien who the consular officer or the Attorney General
knows or has reason to believe--
(i) is or has been an illicit trafficker in any
controlled substance or in any listed chemical (as defined
in section 802 of title 21), or is or has been a knowing
aider, abettor, assister, conspirator, or colluder with
others in the illicit trafficking in any such controlled or
listed substance or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter of an alien
inadmissible under clause (i), has, within the previous 5
years, obtained any financial or other benefit from the
illicit activity of that alien, and knew or reasonably
should have known that the financial or other benefit was
the product of such illicit activity,
is inadmissible.
(D) Prostitution and commercialized vice
Any alien who--
(i) is coming to the United States solely, principally,
or incidentally to engage in prostitution, or has engaged in
prostitution within 10 years of the date of application for
a visa, admission, or adjustment of status,
(ii) directly or indirectly procures or attempts to
procure, or (within 10 years of the date of application for
a visa, admission, or adjustment of status) procured or
attempted to procure or to import, prostitutes or persons
for the purpose of prostitution, or receives or (within such
10-year period) received, in whole or in part, the proceeds
of prostitution, or
(iii) is coming to the United States to engage in any
other unlawful commercialized vice, whether or not related
to prostitution,
is inadmissible.
(E) Certain aliens involved in serious criminal activity who
have asserted immunity from prosecution
Any alien--
(i) who has committed in the United States at any time a
serious criminal offense (as defined in section 1101(h) of
this title),
(ii) for whom immunity from criminal jurisdiction was
exercised with respect to that offense,
(iii) who as a consequence of the offense and exercise
of immunity has departed from the United States, and
(iv) who has not subsequently submitted fully to the
jurisdiction of the court in the United States having
jurisdiction with respect to that offense,
is inadmissible.
(F) Waiver authorized
For provision authorizing waiver of certain subparagraphs of
this paragraph, see subsection (h) of this section.
(G) Foreign government officials who have committed particularly
severe violations of religious freedom
Any alien who, while serving as a foreign government
official, was responsible for or directly carried out, at any
time, particularly severe violations of religious freedom, as
defined in section 6402 of title 22, is inadmissible.
(H) Significant traffickers in persons
(i) In general
Any alien who is listed in a report submitted pursuant
to section 7108(b) of title 22, or who the consular officer
or the Attorney General knows or has reason to believe is or
has been a knowing aider, abettor, assister, conspirator, or
colluder with such a trafficker in severe forms of
trafficking in persons, as defined in the section 7102 of
title 22, is inadmissible.
(ii) Beneficiaries of trafficking
Except as provided in clause (iii), any alien who the
consular officer or the Attorney General knows or has reason
to believe is the spouse, son, or daughter of an alien
inadmissible under clause (i), has, within the previous 5
years, obtained any financial or other benefit from the
illicit activity of that alien, and knew or reasonably
should have known that the financial or other benefit was
the product of such illicit activity, is inadmissible.
(iii) Exception for certain sons and daughters
Clause (ii) shall not apply to a son or daughter who was
a child at the time he or she received the benefit described
in such clause.
(I) Money laundering
Any alien--
(i) who a consular officer or the Attorney General
knows, or has reason to believe, has engaged, is engaging,
or seeks to enter the United States to engage, in an offense
which is described in section 1956 or 1957 of title 18
(relating to laundering of monetary instruments); or
(ii) who a consular officer or the Attorney General
knows is, or has been, a knowing aider, abettor, assister,
conspirator, or colluder with others in an offense which is
described in such section;
is inadmissible.
(3) Security and related grounds
(A) In general
Any alien who a consular officer or the Attorney General
knows, or has reasonable ground to believe, seeks to enter the
United States to engage solely, principally, or incidentally
in--
(i) any activity (I) to violate any law of the United
States relating to espionage or sabotage or (II) to violate
or evade any law prohibiting the export from the United
States of goods, technology, or sensitive information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which is the opposition
to, or the control or overthrow of, the Government of the
United States by force, violence, or other unlawful means,
is inadmissible.
(B) Terrorist activities
(i) In general
Any alien who--
(I) has engaged in a terrorist activity,
(II) a consular officer or the Attorney General
knows, or has reasonable ground to believe, is engaged
in or is likely to engage after entry in any terrorist
activity (as defined in clause (iv)),
(III) has, under circumstances indicating an
intention to cause death or serious bodily harm, incited
terrorist activity,
(IV) is a representative (as defined in clause (v))
of--
(aa) a foreign terrorist organization, as
designated by the Secretary of State under section
1189 of this title, or
(bb) a political, social or other similar group
whose public endorsement of acts of terrorist
activity the Secretary of State has determined
undermines United States efforts to reduce or
eliminate terrorist activities,
(V) is a member of a foreign terrorist organization,
as designated by the Secretary under section 1189 of
this title, or which the alien knows or should have
known is a terrorist organization \1\
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\1\ So in original. Probably should be followed by a comma.
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(VI) has used the alien's position of prominence
within any country to endorse or espouse terrorist
activity, or to persuade others to support terrorist
activity or a terrorist organization, in a way that the
Secretary of State has determined undermines United
States efforts to reduce or eliminate terrorist
activities, or
(VII) is the spouse or child of an alien who is
inadmissible under this section, if the activity causing
the alien to be found inadmissible occurred within the
last 5 years,
is inadmissible. An alien who is an officer, official,
representative, or spokesman of the Palestine Liberation
Organization is considered, for purposes of this chapter, to
be engaged in a terrorist activity.
(ii) Exception
Subclause (VII) of clause (i) does not apply to a spouse
or child--
(I) who did not know or should not reasonably have
known of the activity causing the alien to be found
inadmissible under this section; or
(II) whom the consular officer or Attorney General
has reasonable grounds to believe has renounced the
activity causing the alien to be found inadmissible
under this section.
(iii) ``Terrorist activity'' defined
As used in this chapter, the term ``terrorist activity''
means any activity which is unlawful under the laws of the
place where it is committed (or which, if it had been
committed in the United States, would be unlawful under the
laws of the United States or any State) and which involves
any of the following:
(I) The highjacking or sabotage of any conveyance
(including an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to
kill, injure, or continue to detain, another individual
in order to compel a third person (including a
governmental organization) to do or abstain from doing
any act as an explicit or implicit condition for the
release of the individual seized or detained.
(III) A violent attack upon an internationally
protected person (as defined in section 1116(b)(4) of
title 18) or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any--
(a) biological agent, chemical agent, or nuclear
weapon or device, or
(b) explosive, firearm, or other weapon or
dangerous device (other than for mere personal
monetary gain),
with intent to endanger, directly or indirectly, the safety
of one or more individuals or to cause substantial
damage to property.
(VI) A threat, attempt, or conspiracy to do any of
the foregoing.
(iv) ``Engage in terrorist activity'' defined
As used in this chapter, the term ``engage in terrorist
activity'' means, in an individual capacity or as a member
of an organization--
(I) to commit or to incite to commit, under
circumstances indicating an intention to cause death or
serious bodily injury, a terrorist activity;
(II) to prepare or plan a terrorist activity;
(III) to gather information on potential targets for
terrorist activity;
(IV) to solicit funds or other things of value for--
(aa) a terrorist activity;
(bb) a terrorist organization described in
clause (vi)(I) or (vi)(II); or
(cc) a terrorist organization described in
clause (vi)(III), unless the solicitor can
demonstrate that he did not know, and should not
reasonably have known, that the solicitation would
further the organization's terrorist activity;
(V) to solicit any individual--
(aa) to engage in conduct otherwise described in
this clause;
(bb) for membership in a terrorist organization
described in clause (vi)(I) or (vi)(II); or
(cc) for membership in a terrorist organization
described in clause (vi)(III), unless the solicitor
can demonstrate that he did not know, and should not
reasonably have known, that the solicitation would
further the organization's terrorist activity; or
(VI) to commit an act that the actor knows, or
reasonably should know, affords material support,
including a safe house, transportation, communications,
funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons
(including chemical, biological, or radiological
weapons), explosives, or training--
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or
reasonably should know, has committed or plans to
commit a terrorist activity;
(cc) to a terrorist organization described in
clause (vi)(I) or (vi)(II); or
(dd) to a terrorist organization described in
clause (vi)(III), unless the actor can demonstrate
that he did not know, and should not reasonably have
known, that the act would further the organization's
terrorist activity.
This clause shall not apply to any material support the
alien afforded to an organization or individual that has
committed terrorist activity, if the Secretary of State,
after consultation with the Attorney General, or the
Attorney General, after consultation with the Secretary
of State, concludes in his sole unreviewable discretion,
that this clause should not apply.
(v) ``Representative'' defined
As used in this paragraph, the term ``representative''
includes an officer, official, or spokesman of an
organization, and any person who directs, counsels,
commands, or induces an organization or its members to
engage in terrorist activity.
(vi) ``Terrorist organization'' defined
As used in clause (i)(VI) and clause (iv), the term
``terrorist organization'' means an organization--
(I) designated under section 1189 of this title;
(II) otherwise designated, upon publication in the
Federal Register, by the Secretary of State in
consultation with or upon the request of the Attorney
General, as a terrorist organization, after finding that
the organization engages in the activities described in
subclause (I), (II), or (III) of clause (iv), or that
the organization provides material support to further
terrorist activity; or
(III) that is a group of two or more individuals,
whether organized or not, which engages in the
activities described in subclause (I), (II), or (III) of
clause (iv).
(C) Foreign policy
(i) In general
An alien whose entry or proposed activities in the
United States the Secretary of State has reasonable ground
to believe would have potentially serious adverse foreign
policy consequences for the United States is inadmissible.
(ii) Exception for officials
An alien who is an official of a foreign government or a
purported government, or who is a candidate for election to
a foreign government office during the period immediately
preceding the election for that office, shall not be
excludable or subject to restrictions or conditions on entry
into the United States under clause (i) solely because of
the alien's past, current, or expected beliefs, statements,
or associations, if such beliefs, statements, or
associations would be lawful within the United States.
(iii) Exception for other aliens
An alien, not described in clause (ii), shall not be
excludable or subject to restrictions or conditions on entry
into the United States under clause (i) because of the
alien's past, current, or expected beliefs, statements, or
associations, if such beliefs, statements, or associations
would be lawful within the United States, unless the
Secretary of State personally determines that the alien's
admission would compromise a compelling United States
foreign policy interest.
(iv) Notification of determinations
If a determination is made under clause (iii) with
respect to an alien, the Secretary of State must notify on a
timely basis the chairmen of the Committees on the Judiciary
and Foreign Affairs of the House of Representatives and of
the Committees on the Judiciary and Foreign Relations of the
Senate of the identity of the alien and the reasons for the
determination.
(D) Immigrant membership in totalitarian party
(i) In general
Any immigrant who is or has been a member of or
affiliated with the Communist or any other totalitarian
party (or subdivision or affiliate thereof), domestic or
foreign, is inadmissible.
(ii) Exception for involuntary membership
Clause (i) shall not apply to an alien because of
membership or affiliation if the alien establishes to the
satisfaction of the consular officer when applying for a
visa (or to the satisfaction of the Attorney General when
applying for admission) that the membership or affiliation
is or was involuntary, or is or was solely when under 16
years of age, by operation of law, or for purposes of
obtaining employment, food rations, or other essentials of
living and whether necessary for such purposes.
(iii) Exception for past membership
Clause (i) shall not apply to an alien because of
membership or affiliation if the alien establishes to the
satisfaction of the consular officer when applying for a
visa (or to the satisfaction of the Attorney General when
applying for admission) that--
(I) the membership or affiliation terminated at
least--
(a) 2 years before the date of such application,
or
(b) 5 years before the date of such application,
in the case of an alien whose membership or
affiliation was with the party controlling the
government of a foreign state that is a totalitarian
dictatorship as of such date, and
(II) the alien is not a threat to the security of
the United States.
(iv) Exception for close family members
The Attorney General may, in the Attorney General's
discretion, waive the application of clause (i) in the case
of an immigrant who is the parent, spouse, son, daughter,
brother, or sister of a citizen of the United States or a
spouse, son, or daughter of an alien lawfully admitted for
permanent residence for humanitarian purposes, to assure
family unity, or when it is otherwise in the public interest
if the immigrant is not a threat to the security of the
United States.
(E) Participants in Nazi persecution, genocide, or the
commission of any act of torture or extrajudicial
killing
(i) Participation in Nazi persecutions
Any alien who, during the period beginning on March 23,
1933, and ending on May 8, 1945, under the direction of, or
in association with--
(I) the Nazi government of Germany,
(II) any government in any area occupied by the
military forces of the Nazi government of Germany,
(III) any government established with the assistance
or cooperation of the Nazi government of Germany, or
(IV) any government which was an ally of the Nazi
government of Germany,
ordered, incited, assisted, or otherwise participated in the
persecution of any person because of race, religion,
national origin, or political opinion is inadmissible.
(ii) Participation in genocide
Any alien who ordered, incited, assisted, or otherwise
participated in conduct outside the United States that
would, if committed in the United States or by a United
States national, be genocide, as defined in section 1091(a)
of title 18, is inadmissible.
(iii) Commission of acts of torture or extrajudicial
killings
Any alien who, outside the United States, has committed,
ordered, incited, assisted, or otherwise participated in the
commission of--
(I) any act of torture, as defined in section 2340
of title 18; or
(II) under color of law of any foreign nation, any
extrajudicial killing, as defined in section 3(a) of the
Torture Victim Protection Act of 1991 (28 U.S.C. 1350
note),
is inadmissible.
(F) Association with terrorist organizations
Any alien who the Secretary of State, after consultation
with the Attorney General, or the Attorney General, after
consultation with the Secretary of State, determines has been
associated with a terrorist organization and intends while in
the United States to engage solely, principally, or incidentally
in activities that could endanger the welfare, safety, or
security of the United States is inadmissible.
(4) Public charge
(A) In general
Any alien who, in the opinion of the consular officer at the
time of application for a visa, or in the opinion of the
Attorney General at the time of application for admission or
adjustment of status, is likely at any time to become a public
charge is inadmissible.
(B) Factors to be taken into account
(i) In determining whether an alien is inadmissible under
this paragraph, the consular officer or the Attorney General
shall at a minimum consider the alien's--
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial status; and
(V) education and skills.
(ii) In addition to the factors under clause (i), the
consular officer or the Attorney General may also consider any
affidavit of support under section 1183a of this title for
purposes of exclusion under this paragraph.
(C) Family-sponsored immigrants
Any alien who seeks admission or adjustment of status under
a visa number issued under section 1151(b)(2) or 1153(a) of this
title is inadmissible under this paragraph unless--
(i) the alien has obtained--
(I) status as a spouse or a child of a United States
citizen pursuant to clause (ii), (iii), or (iv) of
section 1154(a)(1)(A) of this title, or
(II) classification pursuant to clause (ii) or (iii)
of section 1154(a)(1)(B) of this title; or
(ii) the person petitioning for the alien's admission
(and any additional sponsor required under section 1183a(f)
of this title or any alternative sponsor permitted under
paragraph (5)(B) of such section) has executed an affidavit
of support described in section 1183a of this title with
respect to such alien.
(D) Certain employment-based immigrants
Any alien who seeks admission or adjustment of status under
a visa number issued under section 1153(b) of this title by
virtue of a classification petition filed by a relative of the
alien (or by an entity in which such relative has a significant
ownership interest) is inadmissible under this paragraph unless
such relative has executed an affidavit of support described in
section 1183a of this title with respect to such alien.
(5) Labor certification and qualifications for certain
immigrants
(A) Labor certification
(i) In general
Any alien who seeks to enter the United States for the
purpose of performing skilled or unskilled labor is
inadmissible, unless the Secretary of Labor has determined
and certified to the Secretary of State and the Attorney
General that--
(I) there are not sufficient workers who are able,
willing, qualified (or equally qualified in the case of
an alien described in clause (ii)) and available at the
time of application for a visa and admission to the
United States and at the place where the alien is to
perform such skilled or unskilled labor, and
(II) the employment of such alien will not adversely
affect the wages and working conditions of workers in
the United States similarly employed.
(ii) Certain aliens subject to special rule
For purposes of clause (i)(I), an alien described in
this clause is an alien who--
(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the
arts.
(iii) Professional athletes
(I) In general
A certification made under clause (i) with respect
to a professional athlete shall remain valid with
respect to the athlete after the athlete changes
employer, if the new employer is a team in the same
sport as the team which employed the athlete when the
athlete first applied for the certification.
(II) ``Professional athlete'' defined
For purposes of subclause (I), the term
``professional athlete'' means an individual who is
employed as an athlete by--
(aa) a team that is a member of an association
of 6 or more professional sports teams whose total
combined revenues exceed $10,000,000 per year, if
the association governs the conduct of its members
and regulates the contests and exhibitions in which
its member teams regularly engage; or
(bb) any minor league team that is affiliated
with such an association.
(iv) Long delayed adjustment applicants
A certification made under clause (i) with respect to an
individual whose petition is covered by section 1154(j) of
this title shall remain valid with respect to a new job
accepted by the individual after 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
certification was issued.
(B) Unqualified physicians
An alien who is a graduate of a medical school not
accredited by a body or bodies approved for the purpose by the
Secretary of Education (regardless of whether such school of
medicine is in the United States) and who is coming to the
United States principally to perform services as a member of the
medical profession is inadmissible, unless the alien (i) has
passed parts I and II of the National Board of Medical Examiners
Examination (or an equivalent examination as determined by the
Secretary of Health and Human Services) and (ii) is competent in
oral and written English. For purposes of the previous sentence,
an alien who is a graduate of a medical school shall be
considered to have passed parts I and II of the National Board
of Medical Examiners if the alien was fully and permanently
licensed to practice medicine in a State on January 9, 1978, and
was practicing medicine in a State on that date.
(C) Uncertified foreign health-care workers
Subject to subsection (r) of this section, any alien who
seeks to enter the United States for the purpose of performing
labor as a health-care worker, other than a physician, is
inadmissible unless the alien presents to the consular officer,
or, in the case of an adjustment of status, the Attorney
General, a certificate from the Commission on Graduates of
Foreign Nursing Schools, or a certificate from an equivalent
independent credentialing organization approved by the Attorney
General in consultation with the Secretary of Health and Human
Services, verifying that--
(i) the alien's education, training, license, and
experience--
(I) meet all applicable statutory and regulatory
requirements for entry into the United States under the
classification specified in the application;
(II) are comparable with that required for an
American health-care worker of the same type; and
(III) are authentic and, in the case of a license,
unencumbered;
(ii) the alien has the level of competence in oral and
written English considered by the Secretary of Health and
Human Services, in consultation with the Secretary of
Education, to be appropriate for health care work of the
kind in which the alien will be engaged, as shown by an
appropriate score on one or more nationally recognized,
commercially available, standardized assessments of the
applicant's ability to speak and write; and
(iii) if a majority of States licensing the profession
in which the alien intends to work recognize a test
predicting the success on the profession's licensing or
certification examination, the alien has passed such a test
or has passed such an examination.
For purposes of clause (ii), determination of the standardized
tests required and of the minimum scores that are appropriate
are within the sole discretion of the Secretary of Health and
Human Services and are not subject to further administrative or
judicial review.
(D) Application of grounds
The grounds for inadmissibility of aliens under
subparagraphs (A) and (B) shall apply to immigrants seeking
admission or adjustment of status under paragraph (2) or (3) of
section 1153(b) of this title.
(6) Illegal entrants and immigration violators
(A) Aliens present without admission or parole
(i) In general
An alien present in the United States without being
admitted or paroled, or who arrives in the United States at
any time or place other than as designated by the Attorney
General, is inadmissible.
(ii) Exception for certain battered women and
children
Clause (i) shall not apply to an alien who demonstrates
that--
(I) the alien qualifies for immigrant status under
subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of
section 1154(a)(1) of this title,
(II)(a) the alien has been battered or subjected to
extreme cruelty by a spouse or parent, or by a member of
the spouse's or parent's family residing in the same
household as the alien and the spouse or parent
consented or acquiesced to such battery or cruelty, or
(b) the alien's child has been battered or subjected to
extreme cruelty by a spouse or parent of the alien
(without the active participation of the alien in the
battery or cruelty) or by a member of the spouse's or
parent's family residing in the same household as the
alien when the spouse or parent consented to or
acquiesced in such battery or cruelty and the alien did
not actively participate in such battery or cruelty, and
(III) there was a substantial connection between the
battery or cruelty described in subclause (I) or (II)
and the alien's unlawful entry into the United States.
(B) Failure to attend removal proceeding
Any alien who without reasonable cause fails or refuses to
attend or remain in attendance at a proceeding to determine the
alien's inadmissibility or deportability and who seeks admission
to the United States within 5 years of such alien's subsequent
departure or removal is inadmissible.
(C) Misrepresentation
(i) In general
Any alien who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or has sought to procure or
has procured) a visa, other documentation, or admission into
the United States or other benefit provided under this
chapter is inadmissible.
(ii) Falsely claiming citizenship
(I) In general
Any alien who falsely represents, or has falsely
represented, himself or herself to be a citizen of the
United States for any purpose or benefit under this
chapter (including section 1324a of this title) or any
other Federal or State law is inadmissible.
(II) Exception
In the case of an alien making a representation
described in subclause (I), if each natural parent of
the alien (or, in the case of an adopted alien, each
adoptive parent of the alien) is or was a citizen
(whether by birth or naturalization), the alien
permanently resided in the United States prior to
attaining the age of 16, and the alien reasonably
believed at the time of making such representation that
he or she was a citizen, the alien shall not be
considered to be inadmissible under any provision of
this subsection based on such representation.
(iii) Waiver authorized
For provision authorizing waiver of clause (i), see
subsection (i) of this section.
(D) Stowaways
Any alien who is a stowaway is inadmissible.
(E) Smugglers
(i) In general
Any alien who at any time knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to
enter or to try to enter the United States in violation of
law is inadmissible.
(ii) Special rule in the case of family
reunification
Clause (i) shall not apply in the case of alien who is
an eligible immigrant (as defined in section 301(b)(1) of
the Immigration Act of 1990), was physically present in the
United States on May 5, 1988, and is seeking admission as an
immediate relative or under section 1153(a)(2) of this title
(including under section 112 of the Immigration Act of 1990)
or benefits under section 301(a) of the Immigration Act of
1990 if the alien, before May 5, 1988, has encouraged,
induced, assisted, abetted, or aided only the alien's
spouse, parent, son, or daughter (and no other individual)
to enter the United States in violation of law.
(iii) Waiver authorized
For provision authorizing waiver of clause (i), see
subsection (d)(11) of this section.
(F) Subject of civil penalty
(i) In general
An alien who is the subject of a final order for
violation of section 1324c of this title is inadmissible.
(ii) Waiver authorized
For provision authorizing waiver of clause (i), see
subsection (d)(12) of this section.
(G) Student visa abusers
An alien who obtains the status of a nonimmigrant under
section 1101(a)(15)(F)(i) of this title and who violates a term
or condition of such status under section 1184(l) \2\ of this
title is inadmissible until the alien has been outside the
United States for a continuous period of 5 years after the date
of the violation.
---------------------------------------------------------------------------
\2\ See Reference in Text note below.
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(7) Documentation requirements
(A) Immigrants
(i) In general
Except as otherwise specifically provided in this
chapter, any immigrant at the time of application for
admission--
(I) who is not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing
identification card, or other valid entry document
required by this chapter, and a valid unexpired
passport, or other suitable travel document, or document
of identity and nationality if such document is required
under the regulations issued by the Attorney General
under section 1181(a) of this title, or
(II) whose visa has been issued without compliance
with the provisions of section 1153 of this title,
is inadmissible.
(ii) Waiver authorized
For provision authorizing waiver of clause (i), see
subsection (k) of this section.
(B) Nonimmigrants
(i) In general
Any nonimmigrant who--
(I) is not in possession of a passport valid for a
minimum of six months from the date of the expiration of
the initial period of the alien's admission or
contemplated initial period of stay authorizing the
alien to return to the country from which the alien came
or to proceed to and enter some other country during
such period, or
(II) is not in possession of a valid nonimmigrant
visa or border crossing identification card at the time
of application for admission,
is inadmissible.
(ii) General waiver authorized
For provision authorizing waiver of clause (i), see
subsection (d)(4) of this section.
(iii) Guam visa waiver
For provision authorizing waiver of clause (i) in the
case of visitors to Guam, see subsection (l) of this
section.
(iv) Visa waiver program
For authority to waive the requirement of clause (i)
under a program, see section 1187 of this title.
(8) Ineligible for citizenship
(A) In general
Any immigrant who is permanently ineligible to citizenship
is inadmissible.
(B) Draft evaders
Any person who has departed from or who has remained outside
the United States to avoid or evade training or service in the
armed forces in time of war or a period declared by the
President to be a national emergency is inadmissible, except
that this subparagraph shall not apply to an alien who at the
time of such departure was a nonimmigrant and who is seeking to
reenter the United States as a nonimmigrant.
(9) Aliens previously removed
(A) Certain aliens previously removed
(i) Arriving aliens
Any alien who has been ordered removed under section
1225(b)(1) of this title or at the end of proceedings under
section 1229a of this title initiated upon the alien's
arrival in the United States and who again seeks admission
within 5 years of the date of such removal (or within 20
years in the case of a second or subsequent removal or at
any time in the case of an alien convicted of an aggravated
felony) is inadmissible.
(ii) Other aliens
Any alien not described in clause (i) who--
(I) has been ordered removed under section 1229a of
this title or any other provision of law, or
(II) departed the United States while an order of
removal was outstanding,
and who seeks admission within 10 years of the date of such
alien's departure or removal (or within 20 years of such
date in the case of a second or subsequent removal or at any
time in the case of an alien convicted of an aggravated
felony) is inadmissible.
(iii) Exception
Clauses (i) and (ii) shall not apply to an alien seeking
admission within a period if, prior to the date of the
alien's reembarkation at a place outside the United States
or attempt to be admitted from foreign contiguous territory,
the Attorney General has consented to the alien's reapplying
for admission.
(B) Aliens unlawfully present
(i) In general
Any alien (other than an alien lawfully admitted for
permanent residence) who--
(I) was unlawfully present in the United States for
a period of more than 180 days but less than 1 year,
voluntarily departed the United States (whether or not
pursuant to section 1254a(e) \3\ of this title) prior to
the commencement of proceedings under section 1225(b)(1)
of this title or section 1229a of this title, and again
seeks admission within 3 years of the date of such
alien's departure or removal, or
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\3\ So in original. Probably should be a reference to section 1229c
of this title.
---------------------------------------------------------------------------
(II) has been unlawfully present in the United
States for one year or more, and who again seeks
admission within 10 years of the date of such alien's
departure or removal from the United States,
is inadmissible.
(ii) Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be
unlawfully present in the United States if the alien is
present in the United States after the expiration of the
period of stay authorized by the Attorney General or is
present in the United States without being admitted or
paroled.
(iii) Exceptions
(I) Minors
No period of time in which an alien is under 18
years of age shall be taken into account in determining
the period of unlawful presence in the United States
under clause (i).
(II) Asylees
No period of time in which an alien has a bona fide
application for asylum pending under section 1158 of
this title shall be taken into account in determining
the period of unlawful presence in the United States
under clause (i) unless the alien during such period was
employed without authorization in the United States.
(III) Family unity
No period of time in which the alien is a
beneficiary of family unity protection pursuant to
section 301 of the Immigration Act of 1990 shall be
taken into account in determining the period of unlawful
presence in the United States under clause (i).
(IV) Battered women and children
Clause (i) shall not apply to an alien who would be
described in paragraph (6)(A)(ii) if ``violation of the
terms of the alien's nonimmigrant visa'' were
substituted for ``unlawful entry into the United
States'' in subclause (III) of that paragraph.
(iv) Tolling for good cause
In the case of an alien who--
(I) has been lawfully admitted or paroled into the
United States,
(II) has filed a nonfrivolous application for a
change or extension of status before the date of
expiration of the period of stay authorized by the
Attorney General, and
(III) has not been employed without authorization in
the United States before or during the pendency of such
application,
the calculation of the period of time specified in clause
(i)(I) shall be tolled during the pendency of such
application, but not to exceed 120 days.
(v) Waiver
The Attorney General has sole discretion to waive clause
(i) in the case of an immigrant who is the spouse or son or
daughter of a United States citizen or of an alien lawfully
admitted for permanent residence, if it is established to
the satisfaction of the Attorney General that the refusal of
admission to such immigrant alien would result in extreme
hardship to the citizen or lawfully resident spouse or
parent of such alien. No court shall have jurisdiction to
review a decision or action by the Attorney General
regarding a waiver under this clause.
(C) Aliens unlawfully present after previous immigration
violations
(i) In general
Any alien who--
(I) has been unlawfully present in the United States
for an aggregate period of more than 1 year, or
(II) has been ordered removed under section
1225(b)(1) of this title, section 1229a of this title,
or any other provision of law,
and who enters or attempts to reenter the United States
without being admitted is inadmissible.
(ii) Exception
Clause (i) shall not apply to an alien seeking admission
more than 10 years after the date of the alien's last
departure from the United States if, prior to the alien's
reembarkation at a place outside the United States or
attempt to be readmitted from a foreign contiguous
territory, the Attorney General has consented to the alien's
reapplying for admission. The Attorney General in the
Attorney General's discretion may waive the provisions of
subsection (a)(9)(C)(i) of this section in the case of an
alien to whom the Attorney General has granted
classification under clause (iii), (iv), or (v) of section
1154(a)(1)(A) of this title, or classification under clause
(ii), (iii), or (iv) of section 1154(a)(1)(B) of this title,
in any case in which there is a connection between--
(1) the alien's having been battered or subjected to
extreme cruelty; and
(2) the alien's--
(A) removal;
(B) departure from the United States;
(C) reentry or reentries into the United States;
or
(D) attempted reentry into the United States.
(10) Miscellaneous
(A) Practicing polygamists
Any immigrant who is coming to the United States to practice
polygamy is inadmissible.
(B) Guardian required to accompany helpless alien
Any alien--
(i) who is accompanying another alien who is
inadmissible and who is certified to be helpless from
sickness, mental or physical disability, or infancy pursuant
to section 1222(c) of this title, and
(ii) whose protection or guardianship is determined to
be required by the alien described in clause (i),
is inadmissible.
(C) International child abduction
(i) In general
Except as provided in clause (ii), any alien who, after
entry of an order by a court in the United States granting
custody to a person of a United States citizen child who
detains or retains the child, or withholds custody of the
child, outside the United States from the person granted
custody by that order, is inadmissible until the child is
surrendered to the person granted custody by that order.
(ii) Aliens supporting abductors and relatives of
abductors
Any alien who--
(I) is known by the Secretary of State to have
intentionally assisted an alien in the conduct described
in clause (i),
(II) is known by the Secretary of State to be
intentionally providing material support or safe haven
to an alien described in clause (i), or
(III) is a spouse (other than the spouse who is the
parent of the abducted child), child (other than the
abducted child), parent, sibling, or agent of an alien
described in clause (i), if such person has been
designated by the Secretary of State at the Secretary's
sole and unreviewable discretion, is inadmissible until
the child described in clause (i) is surrendered to the
person granted custody by the order described in that
clause, and such person and child are permitted to
return to the United States or such person's place of
residence.
(iii) Exceptions
Clauses (i) and (ii) shall not apply--
(I) to a government official of the United States
who is acting within the scope of his or her official
duties;
(II) to a government official of any foreign
government if the official has been designated by the
Secretary of State at the Secretary's sole and
unreviewable discretion; or
(III) so long as the child is located in a foreign
state that is a party to the Convention on the Civil
Aspects of International Child Abduction, done at The
Hague on October 25, 1980.
(D) Unlawful voters
(i) In general
Any alien who has voted in violation of any Federal,
State, or local constitutional provision, statute,
ordinance, or regulation is inadmissible.
(ii) Exception
In the case of an alien who voted in a Federal, State,
or local election (including an initiative, recall, or
referendum) in violation of a lawful restriction of voting
to citizens, if each natural parent of the alien (or, in the
case of an adopted alien, each adoptive parent of the alien)
is or was a citizen (whether by birth or naturalization),
the alien permanently resided in the United States prior to
attaining the age of 16, and the alien reasonably believed
at the time of such violation that he or she was a citizen,
the alien shall not be considered to be inadmissible under
any provision of this subsection based on such violation.
(E) Former citizens who renounced citizenship to avoid taxation
Any alien who is a former citizen of the United States who
officially renounces United States citizenship and who is
determined by the Attorney General to have renounced United
States citizenship for the purpose of avoiding taxation by the
United States is inadmissible.
(b) Notices of denials
(1) Subject to paragraphs (2) and (3), if an alien's application for
a visa, for admission to the United States, or for adjustment of status
is denied by an immigration or consular officer because the officer
determines the alien to be inadmissible under subsection (a) of this
section, the officer shall provide the alien with a timely written
notice that--
(A) states the determination, and
(B) lists the specific provision or provisions of law under
which the alien is inadmissible or adjustment \4\ of status.
---------------------------------------------------------------------------
\4\ So in original. Probably should be preceded by ``ineligible
for''.
(2) The Secretary of State may waive the requirements of paragraph
(1) with respect to a particular alien or any class or classes of
inadmissible aliens.
(3) Paragraph (1) does not apply to any alien inadmissible under
paragraph (2) or (3) of subsection (a) of this section.
(c) Repealed. Pub. L. 104-208, div. C, title III, Sec. 304(b), Sept. 30,
1996, 110 Stat. 3009-597
(d) Temporary admission of nonimmigrants
(1) The Attorney General shall determine whether a ground for
inadmissibility exists with respect to a nonimmigrant described in
section 1101(a)(15)(S) of this title. The Attorney General, in the
Attorney General's discretion, may waive the application of subsection
(a) of this section (other than paragraph (3)(E)) in the case of a
nonimmigrant described in section 1101(a)(15)(S) of this title, if the
Attorney General considers it to be in the national interest to do so.
Nothing in this section shall be regarded as prohibiting the Immigration
and Naturalization Service from instituting removal proceedings against
an alien admitted as a nonimmigrant under section 1101(a)(15)(S) of this
title for conduct committed after the alien's admission into the United
States, or for conduct or a condition that was not disclosed to the
Attorney General prior to the alien's admission as a nonimmigrant under
section 1101(a)(15)(S) of this title.
(2) Repealed. Pub. L. 101-649, title VI, Sec. 601(d)(2)(A), Nov. 29,
1990, 104 Stat. 5076.
(3) Except as provided in this subsection, an alien (A) who is
applying for a nonimmigrant visa and is known or believed by the
consular officer to be ineligible for such visa under subsection (a) of
this section (other than paragraphs (3)(A)(i)(I), (3)(A)(ii),
(3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of
such subsection), may, after approval by the Attorney General of a
recommendation by the Secretary of State or by the consular officer that
the alien be admitted temporarily despite his inadmissibility, be
granted such a visa and may be admitted into the United States
temporarily as a nonimmigrant in the discretion of the Attorney General,
or (B) who is inadmissible under subsection (a) of this section (other
than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and
clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is
in possession of appropriate documents or is granted a waiver thereof
and is seeking admission, may be admitted into the United States
temporarily as a nonimmigrant in the discretion of the Attorney General.
The Attorney General shall prescribe conditions, including exaction of
such bonds as may be necessary, to control and regulate the admission
and return of inadmissible aliens applying for temporary admission under
this paragraph.
(4) Either or both of the requirements of paragraph (7)(B)(i) of
subsection (a) of this section may be waived by the Attorney General and
the Secretary of State acting jointly (A) on the basis of unforeseen
emergency in individual cases, or (B) on the basis of reciprocity with
respect to nationals of foreign contiguous territory or of adjacent
islands and residents thereof having a common nationality with such
nationals, or (C) in the case of aliens proceeding in immediate and
continuous transit through the United States under contracts authorized
in section 1223(c) of this title.
(5)(A) The Attorney General may, except as provided in subparagraph
(B) or in section 1184(f) of this title, in his discretion parole into
the United States temporarily under such conditions as he may prescribe
only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to the
United States, but such parole of such alien shall not be regarded as an
admission of the alien and when the purposes of such parole shall, in
the opinion of the Attorney General, have been served the alien shall
forthwith return or be returned to the custody from which he was paroled
and thereafter his case shall continue to be dealt with in the same
manner as that of any other applicant for admission to the United
States.
(B) The Attorney General may not parole into the United States an
alien who is a refugee unless the Attorney General determines that
compelling reasons in the public interest with respect to that
particular alien require that the alien be paroled into the United
States rather than be admitted as a refugee under section 1157 of this
title.
(6) Repealed. Pub. L. 101-649, title VI, Sec. 601(d)(2)(A), Nov. 29,
1990, 104 Stat. 5076.
(7) The provisions of subsection (a) of this section (other than
paragraph (7)) shall be applicable to any alien who shall leave Guam,
Puerto Rico, or the Virgin Islands of the United States, and who seeks
to enter the continental United States or any other place under the
jurisdiction of the United States. The Attorney General shall by
regulations provide a method and procedure for the temporary admission
to the United States of the aliens described in this proviso.\5\ Any
alien described in this paragraph, who is denied admission to the United
States, shall be immediately removed in the manner provided by section
1231(c) of this title.
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\5\ So in original.
---------------------------------------------------------------------------
(8) Upon a basis of reciprocity accredited officials of foreign
governments, their immediate families, attendants, servants, and
personal employees may be admitted in immediate and continuous transit
through the United States without regard to the provisions of this
section except paragraphs (3)(A), (3)(B), (3)(C), and (7)(B) of
subsection (a) of this section.
(9), (10) Repealed. Pub. L. 101-649, title VI, Sec. 601(d)(2)(A),
Nov. 29, 1990, 104 Stat. 5076.
(11) The Attorney General may, in his discretion for humanitarian
purposes, to assure family unity, or when it is otherwise in the public
interest, waive application of clause (i) of subsection (a)(6)(E) of
this section in the case of any alien lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not under an
order of removal, and who is otherwise admissible to the United States
as a returning resident under section 1181(b) of this title and in the
case of an alien seeking admission or adjustment of status as an
immediate relative or immigrant under section 1153(a) of this title
(other than paragraph (4) thereof), if the alien has encouraged,
induced, assisted, abetted, or aided only an individual who at the time
of such action was the alien's spouse, parent, son, or daughter (and no
other individual) to enter the United States in violation of law.
(12) The Attorney General may, in the discretion of the Attorney
General for humanitarian purposes or to assure family unity, waive
application of clause (i) of subsection (a)(6)(F) of this section--
(A) in the case of an alien lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not under
an order of deportation or removal and who is otherwise admissible
to the United States as a returning resident under section 1181(b)
of this title, and
(B) in the case of an alien seeking admission or adjustment of
status under section 1151(b)(2)(A) of this title or under section
1153(a) of this title,
if no previous civil money penalty was imposed against the alien under
section 1324c of this title and the offense was committed solely to
assist, aid, or support the alien's spouse or child (and not another
individual). No court shall have jurisdiction to review a decision of
the Attorney General to grant or deny a waiver under this paragraph.
(13)(A) The Attorney General shall determine whether a ground for
inadmissibility exists with respect to a nonimmigrant described in
section 1101(a)(15)(T) of this title, except that the ground for
inadmissibility described in subsection (a)(4) of this section shall not
apply with respect to such a nonimmigrant.
(B) In addition to any other waiver that may be available under this
section, in the case of a nonimmigrant described in section
1101(a)(15)(T) of this title, if the Attorney General considers it to be
in the national interest to do so, the Attorney General, in the Attorney
General's discretion, may waive the application of--
(i) subsection (a)(1) of this section; and
(ii) any other provision of subsection (a) of this section
(excluding paragraphs (3), (4), (10)(C), and (10(E)) \6\ if the
activities rendering the alien inadmissible under the provision were
caused by, or were incident to, the victimization described in
section 1101(a)(15)(T)(i)(I) of this title.
---------------------------------------------------------------------------
\6\ So in original. Probably should be ``(10)(E))''.
(14) The Attorney General shall determine whether a ground of
inadmissibility exists with respect to a nonimmigrant described in
section 1101(a)(15)(U) of this title. The Attorney General, in the
Attorney General's discretion, may waive the application of subsection
(a) of this section (other than paragraph (3)(E)) in the case of a
nonimmigrant described in section 1101(a)(15)(U) of this title, if the
Attorney General considers it to be in the public or national interest
to do so.
(e) Educational visitor status; foreign residence requirement; waiver
No person admitted under section 1101(a)(15)(J) of this title or
acquiring such status after admission (i) whose participation in the
program for which he came to the United States was financed in whole or
in part, directly or indirectly, by an agency of the Government of the
United States or by the government of the country of his nationality or
his last residence, (ii) who at the time of admission or acquisition of
status under section 1101(a)(15)(J) of this title was a national or
resident of a country which the Director of the United States
Information Agency, pursuant to regulations prescribed by him, had
designated as clearly requiring the services of persons engaged in the
field of specialized knowledge or skill in which the alien was engaged,
or (iii) who came to the United States or acquired such status in order
to receive graduate medical education or training, shall be eligible to
apply for an immigrant visa, or for permanent residence, or for a
nonimmigrant visa under section 1101(a)(15)(H) or section 1101(a)(15)(L)
of this title until it is established that such person has resided and
been physically present in the country of his nationality or his last
residence for an aggregate of at least two years following departure
from the United States: Provided, That upon the favorable recommendation
of the Director, pursuant to the request of an interested United States
Government agency (or, in the case of an alien described in clause
(iii), pursuant to the request of a State Department of Public Health,
or its equivalent), or of the Commissioner of Immigration and
Naturalization after he has determined that departure from the United
States would impose exceptional hardship upon the alien's spouse or
child (if such spouse or child is a citizen of the United States or a
lawfully resident alien), or that the alien cannot return to the country
of his nationality or last residence because he would be subject to
persecution on account of race, religion, or political opinion, the
Attorney General may waive the requirement of such two-year foreign
residence abroad in the case of any alien whose admission to the United
States is found by the Attorney General to be in the public interest
except that in the case of a waiver requested by a State Department of
Public Health, or its equivalent, or in the case of a waiver requested
by an interested United States Government agency on behalf of an alien
described in clause (iii), the waiver shall be subject to the
requirements of section 1184(l) of this title: And provided further,
That, except in the case of an alien described in clause (iii), the
Attorney General may, upon the favorable recommendation of the Director,
waive such two-year foreign residence requirement in any case in which
the foreign country of the alien's nationality or last residence has
furnished the Director a statement in writing that it has no objection
to such waiver in the case of such alien.
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any
class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such
period as he shall deem necessary, suspend the entry of all aliens or
any class of aliens as immigrants or nonimmigrants, or impose on the
entry of aliens any restrictions he may deem to be appropriate. Whenever
the Attorney General finds that a commercial airline has failed to
comply with regulations of the Attorney General relating to requirements
of airlines for the detection of fraudulent documents used by passengers
traveling to the United States (including the training of personnel in
such detection), the Attorney General may suspend the entry of some or
all aliens transported to the United States by such airline.
(g) Bond and conditions for admission of alien inadmissible on health-
related grounds
The Attorney General may waive the application of--
(1) subsection (a)(1)(A)(i) in the case of any alien who--
(A) is the spouse or the unmarried son or daughter, or the
minor unmarried lawfully adopted child, of a United States
citizen, or of an alien lawfully admitted for permanent
residence, or of an alien who has been issued an immigrant visa,
(B) has a son or daughter who is a United States citizen, or
an alien lawfully admitted for permanent residence, or an alien
who has been issued an immigrant visa; or
(C) qualifies for classification under clause (iii) or (iv)
of section 1154(a)(1)(A) of this title or classification under
clause (ii) or (iii) of section 1154(a)(1)(B) of this title;
in accordance with such terms, conditions, and controls, if any,
including the giving of bond, as the Attorney General, in the
discretion of the Attorney General after consultation with the
Secretary of Health and Human Services, may by regulation prescribe;
(2) subsection (a)(1)(A)(ii) of this section in the case of any
alien--
(A) who receives vaccination against the vaccine-preventable
disease or diseases for which the alien has failed to present
documentation of previous vaccination,
(B) for whom a civil surgeon, medical officer, or panel
physician (as those terms are defined by section 34.2 of title
42 of the Code of Federal Regulations) certifies, according to
such regulations as the Secretary of Health and Human Services
may prescribe, that such vaccination would not be medically
appropriate, or
(C) under such circumstances as the Attorney General
provides by regulation, with respect to whom the requirement of
such a vaccination would be contrary to the alien's religious
beliefs or moral convictions; or
(3) subsection (a)(1)(A)(iii) of this section in the case of any
alien, in accordance with such terms, conditions, and controls, if
any, including the giving of bond, as the Attorney General, in the
discretion of the Attorney General after consultation with the
Secretary of Health and Human Services, may by regulation prescribe.
(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)
The Attorney General may, in his discretion, waive the application
of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) of
this section and subparagraph (A)(i)(II) of such subsection insofar as
it relates to a single offense of simple possession of 30 grams or less
of marijuana if--
(1)(A) in the case of any immigrant it is established to the
satisfaction of the Attorney General that--
(i) the alien is inadmissible only under subparagraph (D)(i)
or (D)(ii) of such subsection or the activities for which the
alien is inadmissible occurred more than 15 years before the
date of the alien's application for a visa, admission, or
adjustment of status,
(ii) the admission to the United States of such alien would
not be contrary to the national welfare, safety, or security of
the United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse, parent, son,
or daughter of a citizen of the United States or an alien lawfully
admitted for permanent residence if it is established to the
satisfaction of the Attorney General that the alien's denial of
admission would result in extreme hardship to the United States
citizen or lawfully resident spouse, parent, son, or daughter of
such alien; or
(C) the alien qualifies for classification under clause (iii) or
(iv) of section 1154(a)(1)(A) of this title or classification under
clause (ii) or (iii) of section 1154(a)(1)(B) of this title; and
(2) the Attorney General, in his discretion, and pursuant to
such terms, conditions and procedures as he may by regulations
prescribe, has consented to the alien's applying or reapplying for a
visa, for admission to the United States, or adjustment of status.
No waiver shall be provided under this subsection in the case of an
alien who has been convicted of (or who has admitted committing acts
that constitute) murder or criminal acts involving torture, or an
attempt or conspiracy to commit murder or a criminal act involving
torture. No waiver shall be granted under this subsection in the case of
an alien who has previously been admitted to the United States as an
alien lawfully admitted for permanent residence if either since the date
of such admission the alien has been convicted of an aggravated felony
or the alien has not lawfully resided continuously in the United States
for a period of not less than 7 years immediately preceding the date of
initiation of proceedings to remove the alien from the United States. No
court shall have jurisdiction to review a decision of the Attorney
General to grant or deny a waiver under this subsection.
(i) Admission of immigrant inadmissible for fraud or willful
misrepresentation of material fact
(1) The Attorney General may, in the discretion of the Attorney
General, waive the application of clause (i) of subsection (a)(6)(C) of
this section in the case of an immigrant who is the spouse, son, or
daughter of a United States citizen or of an alien lawfully admitted for
permanent residence if it is established to the satisfaction of the
Attorney General that the refusal of admission to the United States of
such immigrant alien would result in extreme hardship to the citizen or
lawfully resident spouse or parent of such an alien or, in the case of
an alien granted classification under clause (iii) or (iv) of section
1154(a)(1)(A) of this title or clause (ii) or (iii) of section
1154(a)(1)(B) of this title, the alien demonstrates extreme hardship to
the alien or the alien's United States citizen, lawful permanent
resident, or qualified alien parent or child.
(2) No court shall have jurisdiction to review a decision or action
of the Attorney General regarding a waiver under paragraph (1).
(j) Limitation on immigration of foreign medical graduates
(1) The additional requirements referred to in section
1101(a)(15)(J) of this title for an alien who is coming to the United
States under a program under which he will receive graduate medical
education or training are as follows:
(A) A school of medicine or of one of the other health
professions, which is accredited by a body or bodies approved for
the purpose by the Secretary of Education, has agreed in writing to
provide the graduate medical education or training under the program
for which the alien is coming to the United States or to assume
responsibility for arranging for the provision thereof by an
appropriate public or nonprofit private institution or agency,
except that, in the case of such an agreement by a school of
medicine, any one or more of its affiliated hospitals which are to
participate in the provision of the graduate medical education or
training must join in the agreement.
(B) Before making such agreement, the accredited school has been
satisfied that the alien (i) is a graduate of a school of medicine
which is accredited by a body or bodies approved for the purpose by
the Secretary of Education (regardless of whether such school of
medicine is in the United States); or (ii)(I) has passed parts I and
II of the National Board of Medical Examiners Examination (or an
equivalent examination as determined by the Secretary of Health and
Human Services), (II) has competency in oral and written English,
(III) will be able to adapt to the educational and cultural
environment in which he will be receiving his education or training,
and (IV) has adequate prior education and training to participate
satisfactorily in the program for which he is coming to the United
States. For the purposes of this subparagraph, an alien who is a
graduate of a medical school shall be considered to have passed
parts I and II of the National Board of Medical Examiners
examination if the alien was fully and permanently licensed to
practice medicine in a State on January 9, 1978, and was practicing
medicine in a State on that date.
(C) The alien has made a commitment to return to the country of
his nationality or last residence upon completion of the education
or training for which he is coming to the United States, and the
government of the country of his nationality or last residence has
provided a written assurance, satisfactory to the Secretary of
Health and Human Services, that there is a need in that country for
persons with the skills the alien will acquire in such education or
training.
(D) The duration of the alien's participation in the program of
graduate medical education or training for which the alien is coming
to the United States is limited to the time typically required to
complete such program, as determined by the Director of the United
States Information Agency at the time of the alien's admission into
the United States, based on criteria which are established in
coordination with the Secretary of Health and Human Services and
which take into consideration the published requirements of the
medical specialty board which administers such education or training
program; except that--
(i) such duration is further limited to seven years unless
the alien has demonstrated to the satisfaction of the Director
that the country to which the alien will return at the end of
such specialty education or training has an exceptional need for
an individual trained in such specialty, and
(ii) the alien may, once and not later than two years after
the date the alien is admitted to the United States as an
exchange visitor or acquires exchange visitor status, change the
alien's designated program of graduate medical education or
training if the Director approves the change and if a commitment
and written assurance with respect to the alien's new program
have been provided in accordance with subparagraph (C).
(E) The alien furnishes the Attorney General each year with an
affidavit (in such form as the Attorney General shall prescribe)
that attests that the alien (i) is in good standing in the program
of graduate medical education or training in which the alien is
participating, and (ii) will return to the country of his
nationality or last residence upon completion of the education or
training for which he came to the United States.
(2) An alien who is a graduate of a medical school and who is coming
to the United States to perform services as a member of the medical
profession may not be admitted as a nonimmigrant under section
1101(a)(15)(H)(i)(b) of this title unless--
(A) the alien is coming pursuant to an invitation from a public
or nonprofit private educational or research institution or agency
in the United States to teach or conduct research, or both, at or
for such institution or agency, or
(B)(i) the alien has passed the Federation licensing examination
(administered by the Federation of State Medical Boards of the
United States) or an equivalent examination as determined by the
Secretary of Health and Human Services, and
(ii)(I) has competency in oral and written English or (II) is a
graduate of a school of medicine which is accredited by a body or
bodies approved for the purpose by the Secretary of Education
(regardless of whether such school of medicine is in the United
States).
(3) Omitted.
(k) Attorney General's discretion to admit otherwise inadmissible aliens
who possess immigrant visas
Any alien, inadmissible from the United States under paragraph
(5)(A) or (7)(A)(i) of subsection (a) of this section, who is in
possession of an immigrant visa may, if otherwise admissible, be
admitted in the discretion of the Attorney General if the Attorney
General is satisfied that inadmissibility was not known to, and could
not have been ascertained by the exercise of reasonable diligence by,
the immigrant before the time of departure of the vessel or aircraft
from the last port outside the United States and outside foreign
contiguous territory or, in the case of an immigrant coming from foreign
contiguous territory, before the time of the immigrant's application for
admission.
(l) Guam; waiver of requirements for nonimmigrant visitors; conditions
of waiver; acceptance of funds from Guam
(1) The requirement of paragraph (7)(B)(i) of subsection (a) of this
section may be waived by the Attorney General, the Secretary of State,
and the Secretary of the Interior, acting jointly, in the case of an
alien applying for admission as a nonimmigrant visitor for business or
pleasure and solely for entry into and stay on Guam for a period not to
exceed fifteen days, if the Attorney General, the Secretary of State,
and the Secretary of the Interior, after consultation with the Governor
of Guam, jointly determine that--
(A) an adequate arrival and departure control system has been
developed on Guam, and
(B) such a waiver does not represent a threat to the welfare,
safety, or security of the United States or its territories and
commonwealths.
(2) An alien may not be provided a waiver under this subsection
unless the alien has waived any right--
(A) to review or appeal under this chapter of an immigration
officer's determination as to the admissibility of the alien at the
port of entry into Guam, or
(B) to contest, other than on the basis of an application for
asylum, any action for removal of the alien.
(3) If adequate appropriated funds to carry out this subsection are
not otherwise available, the Attorney General is authorized to accept
from the Government of Guam such funds as may be tendered to cover all
or any part of the cost of administration and enforcement of this
subsection.
(m) Requirements for admission of nonimmigrant nurses
(1) The qualifications referred to in section 1101(a)(15)(H)(i)(c)
of this title, with respect to an alien who is coming to the United
States to perform nursing services for a facility, are that the alien--
(A) has obtained a full and unrestricted license to practice
professional nursing in the country where the alien obtained nursing
education or has received nursing education in the United States;
(B) has passed an appropriate examination (recognized in
regulations promulgated in consultation with the Secretary of Health
and Human Services) or has a full and unrestricted license under
State law to practice professional nursing in the State of intended
employment; and
(C) is fully qualified and eligible under the laws (including
such temporary or interim licensing requirements which authorize the
nurse to be employed) governing the place of intended employment to
engage in the practice of professional nursing as a registered nurse
immediately upon admission to the United States and is authorized
under such laws to be employed by the facility.
(2)(A) The attestation referred to in section 1101(a)(15)(H)(i)(c)
of this title, with respect to a facility for which an alien will
perform services, is an attestation as to the following:
(i) The facility meets all the requirements of paragraph (6).
(ii) The employment of the alien will not adversely affect the
wages and working conditions of registered nurses similarly
employed.
(iii) The alien employed by the facility will be paid the wage
rate for registered nurses similarly employed by the facility.
(iv) The facility has taken and is taking timely and significant
steps designed to recruit and retain sufficient registered nurses
who are United States citizens or immigrants who are authorized to
perform nursing services, in order to remove as quickly as
reasonably possible the dependence of the facility on nonimmigrant
registered nurses.
(v) There is not a strike or lockout in the course of a labor
dispute, the facility did not lay off and will not lay off a
registered nurse employed by the facility within the period
beginning 90 days before and ending 90 days after the date of filing
of any visa petition, and the employment of such an alien is not
intended or designed to influence an election for a bargaining
representative for registered nurses of the facility.
(vi) At the time of the filing of the petition for registered
nurses under section 1101(a)(15)(H)(i)(c) of this title, notice of
the filing has been provided by the facility to the bargaining
representative of the registered nurses at the facility or, where
there is no such bargaining representative, notice of the filing has
been provided to the registered nurses employed at the facility
through posting in conspicuous locations.
(vii) The facility will not, at any time, employ a number of
aliens issued visas or otherwise provided nonimmigrant status under
section 1101(a)(15)(H)(i)(c) of this title that exceeds 33 percent
of the total number of registered nurses employed by the facility.
(viii) The facility will not, with respect to any alien issued a
visa or otherwise provided nonimmigrant status under section
1101(a)(15)(H)(i)(c) of this title--
(I) authorize the alien to perform nursing services at any
worksite other than a worksite controlled by the facility; or
(II) transfer the place of employment of the alien from one
worksite to another.
Nothing in clause (iv) shall be construed as requiring a facility to
have taken significant steps described in such clause before
November 12, 1999. A copy of the attestation shall be provided,
within 30 days of the date of filing, to registered nurses employed
at the facility on the date of filing.
(B) For purposes of subparagraph (A)(iv), each of the following
shall be considered a significant step reasonably designed to recruit
and retain registered nurses:
(i) Operating a training program for registered nurses at the
facility or financing (or providing participation in) a training
program for registered nurses elsewhere.
(ii) Providing career development programs and other methods of
facilitating health care workers to become registered nurses.
(iii) Paying registered nurses wages at a rate higher than
currently being paid to registered nurses similarly employed in the
geographic area.
(iv) Providing reasonable opportunities for meaningful salary
advancement by registered nurses.
The steps described in this subparagraph shall not be considered to be
an exclusive list of the significant steps that may be taken to meet the
conditions of subparagraph (A)(iv). Nothing in this subparagraph shall
require a facility to take more than one step if the facility can
demonstrate that taking a second step is not reasonable.
(C) Subject to subparagraph (E), an attestation under subparagraph
(A)--
(i) shall expire on the date that is the later of--
(I) the end of the one-year period beginning on the date of
its filing with the Secretary of Labor; or
(II) the end of the period of admission under section
1101(a)(15)(H)(i)(c) of this title of the last alien with
respect to whose admission it was applied (in accordance with
clause (ii)); and
(ii) shall apply to petitions filed during the one-year period
beginning on the date of its filing with the Secretary of Labor if
the facility states in each such petition that it continues to
comply with the conditions in the attestation.
(D) A facility may meet the requirements under this paragraph with
respect to more than one registered nurse in a single petition.
(E)(i) The Secretary of Labor shall compile and make available for
public examination in a timely manner in Washington, D.C., a list
identifying facilities which have filed petitions for nonimmigrants
under section 1101(a)(15)(H)(i)(c) of this title and, for each such
facility, a copy of the facility's attestation under subparagraph (A)
(and accompanying documentation) and each such petition filed by the
facility.
(ii) The Secretary of Labor shall establish a process, including
reasonable time limits, for the receipt, investigation, and disposition
of complaints respecting a facility's failure to meet conditions
attested to or a facility's misrepresentation of a material fact in an
attestation. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives, associations deemed
appropriate by the Secretary, and other aggrieved parties as determined
under regulations of the Secretary). The Secretary shall conduct an
investigation under this clause if there is reasonable cause to believe
that a facility fails to meet conditions attested to. Subject to the
time limits established under this clause, this subparagraph shall apply
regardless of whether an attestation is expired or unexpired at the time
a complaint is filed.
(iii) Under such process, the Secretary shall provide, within 180
days after the date such a complaint is filed, for a determination as to
whether or not a basis exists to make a finding described in clause
(iv). If the Secretary determines that such a basis exists, the
Secretary shall provide for notice of such determination to the
interested parties and an opportunity for a hearing on the complaint
within 60 days of the date of the determination.
(iv) If the Secretary of Labor finds, after notice and opportunity
for a hearing, that a facility (for which an attestation is made) has
failed to meet a condition attested to or that there was a
misrepresentation of material fact in the attestation, the Secretary
shall notify the Attorney General of such finding and may, in addition,
impose such other administrative remedies (including civil monetary
penalties in an amount not to exceed $1,000 per nurse per violation,
with the total penalty not to exceed $10,000 per violation) as the
Secretary determines to be appropriate. Upon receipt of such notice, the
Attorney General shall not approve petitions filed with respect to a
facility during a period of at least one year for nurses to be employed
by the facility.
(v) In addition to the sanctions provided for under clause (iv), if
the Secretary of Labor finds, after notice and an opportunity for a
hearing, that a facility has violated the condition attested to under
subparagraph (A)(iii) (relating to payment of registered nurses at the
prevailing wage rate), the Secretary shall order the facility to provide
for payment of such amounts of back pay as may be required to comply
with such condition.
(F)(i) The Secretary of Labor shall impose on a facility filing an
attestation under subparagraph (A) a filing fee, in an amount prescribed
by the Secretary based on the costs of carrying out the Secretary's
duties under this subsection, but not exceeding $250.
(ii) Fees collected under this subparagraph shall be deposited in a
fund established for this purpose in the Treasury of the United States.
(iii) The collected fees in the fund shall be available to the
Secretary of Labor, to the extent and in such amounts as may be provided
in appropriations Acts, to cover the costs described in clause (i), in
addition to any other funds that are available to the Secretary to cover
such costs.
(3) The period of admission of an alien under section
1101(a)(15)(H)(i)(c) of this title shall be 3 years.
(4) The total number of nonimmigrant visas issued pursuant to
petitions granted under section 1101(a)(15)(H)(i)(c) of this title in
each fiscal year shall not exceed 500. The number of such visas issued
for employment in each State in each fiscal year shall not exceed the
following:
(A) For States with populations of less than 9,000,000, based
upon the 1990 decennial census of population, 25 visas.
(B) For States with populations of 9,000,000 or more, based upon
the 1990 decennial census of population, 50 visas.
(C) If the total number of visas available under this paragraph
for a fiscal year quarter exceeds the number of qualified
nonimmigrants who may be issued such visas during those quarters,
the visas made available under this paragraph shall be issued
without regard to the numerical limitation under subparagraph (A) or
(B) of this paragraph during the last fiscal year quarter.
(5) A facility that has filed a petition under section
1101(a)(15)(H)(i)(c) of this title to employ a nonimmigrant to perform
nursing services for the facility--
(A) shall provide the nonimmigrant a wage rate and working
conditions commensurate with those of nurses similarly employed by
the facility;
(B) shall require the nonimmigrant to work hours commensurate
with those of nurses similarly employed by the facility; and
(C) shall not interfere with the right of the nonimmigrant to
join or organize a union.
(6) For purposes of this subsection and section 1101(a)(15)(H)(i)(c)
of this title, the term ``facility'' means a subsection (d) hospital (as
defined in section 1886(d)(1)(B) of the Social Security Act (42 U.S.C.
1395ww(d)(1)(B))) that meets the following requirements:
(A) As of March 31, 1997, the hospital was located in a health
professional shortage area (as defined in section 254e of title 42).
(B) Based on its settled cost report filed under title XVIII of
the Social Security Act [42 U.S.C. 1395 et seq.] for its cost
reporting period beginning during fiscal year 1994--
(i) the hospital has not less than 190 licensed acute care
beds;
(ii) the number of the hospital's inpatient days for such
period which were made up of patients who (for such days) were
entitled to benefits under part A of such title [42 U.S.C. 1395c
et seq.] is not less than 35 percent of the total number of such
hospital's acute care inpatient days for such period; and
(iii) the number of the hospital's inpatient days for such
period which were made up of patients who (for such days) were
eligible for medical assistance under a State plan approved
under title XIX of the Social Security Act [42 U.S.C. 1396 et
seq.], is not less than 28 percent of the total number of such
hospital's acute care inpatient days for such period.
(7) For purposes of paragraph (2)(A)(v), the term ``lay off'', with
respect to a worker--
(A) means to cause the worker's loss of employment, other than
through a discharge for inadequate performance, violation of
workplace rules, cause, voluntary departure, voluntary retirement,
or the expiration of a grant or contract; but
(B) does not include any situation in which the worker is
offered, as an alternative to such loss of employment, a similar
employment opportunity with the same employer at equivalent or
higher compensation and benefits than the position from which the
employee was discharged, regardless of whether or not the employee
accepts the offer.
Nothing in this paragraph is intended to limit an employee's or an
employer's rights under a collective bargaining agreement or other
employment contract.
(n) Labor condition application
(1) No alien may be admitted or provided status as an H-1B
nonimmigrant in an occupational classification unless the employer has
filed with the Secretary of Labor an application stating the following:
(A) The employer--
(i) is offering and will offer during the period of
authorized employment to aliens admitted or provided status as
an H-1B nonimmigrant wages that are at least--
(I) the actual wage level paid by the employer to all
other individuals with similar experience and qualifications
for the specific employment in question, or
(II) the prevailing wage level for the occupational
classification in the area of employment,
whichever is greater, based on the best information available as
of the time of filing the application, and
(ii) will provide working conditions for such a nonimmigrant
that will not adversely affect the working conditions of workers
similarly employed.
(B) There is not a strike or lockout in the course of a labor
dispute in the occupational classification at the place of
employment.
(C) The employer, at the time of filing the application--
(i) has provided notice of the filing under this paragraph
to the bargaining representative (if any) of the employer's
employees in the occupational classification and area for which
aliens are sought, or
(ii) if there is no such bargaining representative, has
provided notice of filing in the occupational classification
through such methods as physical posting in conspicuous
locations at the place of employment or electronic notification
to employees in the occupational classification for which H-1B
nonimmigrants are sought.
(D) The application shall contain a specification of the number
of workers sought, the occupational classification in which the
workers will be employed, and wage rate and conditions under which
they will be employed.
(E)(i) In the case of an application described in clause (ii),
the employer did not displace and will not displace a United States
worker (as defined in paragraph (4)) employed by the employer within
the period beginning 90 days before and ending 90 days after the
date of filing of any visa petition supported by the application.
(ii) An application described in this clause is an application
filed on or after the date final regulations are first promulgated
to carry out this subparagraph, and before \7\ by an H-1B-dependent
employer (as defined in paragraph (3)) or by an employer that has
been found, on or after October 21, 1998, under paragraph (2)(C) or
(5) to have committed a willful failure or misrepresentation during
the 5-year period preceding the filing of the application. An
application is not described in this clause if the only H-1B
nonimmigrants sought in the application are exempt H-1B
nonimmigrants.
---------------------------------------------------------------------------
\7\ So in original.
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(F) In the case of an application described in subparagraph
(E)(ii), the employer will not place the nonimmigrant with another
employer (regardless of whether or not such other employer is an H-
1B-dependent employer) where--
(i) the nonimmigrant performs duties in whole or in part at
one or more worksites owned, operated, or controlled by such
other employer; and
(ii) there are indicia of an employment relationship between
the nonimmigrant and such other employer;
unless the employer has inquired of the other employer as to
whether, and has no knowledge that, within the period beginning 90
days before and ending 90 days after the date of the placement of
the nonimmigrant with the other employer, the other employer has
displaced or intends to displace a United States worker employed by
the other employer.
(G)(i) In the case of an application described in subparagraph
(E)(ii), subject to clause (ii), the employer, prior to filing the
application--
(I) has taken good faith steps to recruit, in the United
States using procedures that meet industry-wide standards and
offering compensation that is at least as great as that required
to be offered to H-1B nonimmigrants under subparagraph (A),
United States workers for the job for which the nonimmigrant or
nonimmigrants is or are sought; and
(II) has offered the job to any United States worker who
applies and is equally or better qualified for the job for which
the nonimmigrant or nonimmigrants is or are sought.
(ii) The conditions described in clause (i) shall not apply to
an application filed with respect to the employment of an H-1B
nonimmigrant who is described in subparagraph (A), (B), or (C) of
section 1153(b)(1) of this title.
The employer shall make available for public examination, within one
working day after the date on which an application under this paragraph
is filed, at the employer's principal place of business or worksite, a
copy of each such application (and such accompanying documents as are
necessary). The Secretary shall compile, on a current basis, a list (by
employer and by occupational classification) of the applications filed
under this subsection. Such list shall include the wage rate, number of
aliens sought, period of intended employment, and date of need. The
Secretary shall make such list available for public examination in
Washington, D.C. The Secretary of Labor shall review such an application
only for completeness and obvious inaccuracies. Unless the Secretary
finds that the application is incomplete or obviously inaccurate, the
Secretary shall provide the certification described in section
1101(a)(15)(H)(i)(b) of this title within 7 days of the date of the
filing of the application. The application form shall include a clear
statement explaining the liability under subparagraph (F) of a placing
employer if the other employer described in such subparagraph displaces
a United States worker as described in such subparagraph. Nothing in
subparagraph (G) shall be construed to prohibit an employer from using
legitimate selection criteria relevant to the job that are normal or
customary to the type of job involved, so long as such criteria are not
applied in a discriminatory manner.
(2)(A) Subject to paragraph (5)(A), the Secretary shall establish a
process for the receipt, investigation, and disposition of complaints
respecting a petitioner's failure to meet a condition specified in an
application submitted under paragraph (1) or a petitioner's
misrepresentation of material facts in such an application. Complaints
may be filed by any aggrieved person or organization (including
bargaining representatives). No investigation or hearing shall be
conducted on a complaint concerning such a failure or misrepresentation
unless the complaint was filed not later than 12 months after the date
of the failure or misrepresentation, respectively. The Secretary shall
conduct an investigation under this paragraph if there is reasonable
cause to believe that such a failure or misrepresentation has occurred.
(B) Under such process, the Secretary shall provide, within 30 days
after the date such a complaint is filed, for a determination as to
whether or not a reasonable basis exists to make a finding described in
subparagraph (C). If the Secretary determines that such a reasonable
basis exists, the Secretary shall provide for notice of such
determination to the interested parties and an opportunity for a hearing
on the complaint, in accordance with section 556 of title 5, within 60
days after the date of the determination. If such a hearing is
requested, the Secretary shall make a finding concerning the matter by
not later than 60 days after the date of the hearing. In the case of
similar complaints respecting the same applicant, the Secretary may
consolidate the hearings under this subparagraph on such complaints.
(C)(i) If the Secretary finds, after notice and opportunity for a
hearing, a failure to meet a condition of paragraph (1)(B), (1)(E), or
(1)(F), a substantial failure to meet a condition of paragraph (1)(C),
(1)(D), or (1)(G)(i)(I), or a misrepresentation of material fact in an
application--
(I) the Secretary shall notify the Attorney General of such
finding and may, in addition, impose such other administrative
remedies (including civil monetary penalties in an amount not to
exceed $1,000 per violation) as the Secretary determines to be
appropriate; and
(II) the Attorney General shall not approve petitions filed with
respect to that employer under section 1154 or 1184(c) of this title
during a period of at least 1 year for aliens to be employed by the
employer.
(ii) If the Secretary finds, after notice and opportunity for a
hearing, a willful failure to meet a condition of paragraph (1), a
willful misrepresentation of material fact in an application, or a
violation of clause (iv)--
(I) the Secretary shall notify the Attorney General of such
finding and may, in addition, impose such other administrative
remedies (including civil monetary penalties in an amount not to
exceed $5,000 per violation) as the Secretary determines to be
appropriate; and
(II) the Attorney General shall not approve petitions filed with
respect to that employer under section 1154 or 1184(c) of this title
during a period of at least 2 years for aliens to be employed by the
employer.
(iii) If the Secretary finds, after notice and opportunity for a
hearing, a willful failure to meet a condition of paragraph (1) or a
willful misrepresentation of material fact in an application, in the
course of which failure or misrepresentation the employer displaced a
United States worker employed by the employer within the period
beginning 90 days before and ending 90 days after the date of filing of
any visa petition supported by the application--
(I) the Secretary shall notify the Attorney General of such
finding and may, in addition, impose such other administrative
remedies (including civil monetary penalties in an amount not to
exceed $35,000 per violation) as the Secretary determines to be
appropriate; and
(II) the Attorney General shall not approve petitions filed with
respect to that employer under section 1154 or 1184(c) of this title
during a period of at least 3 years for aliens to be employed by the
employer.
(iv) It is a violation of this clause for an employer who has filed
an application under this subsection to intimidate, threaten, restrain,
coerce, blacklist, discharge, or in any other manner discriminate
against an employee (which term, for purposes of this clause, includes a
former employee and an applicant for employment) because the employee
has disclosed information to the employer, or to any other person, that
the employee reasonably believes evidences a violation of this
subsection, or any rule or regulation pertaining to this subsection, or
because the employee cooperates or seeks to cooperate in an
investigation or other proceeding concerning the employer's compliance
with the requirements of this subsection or any rule or regulation
pertaining to this subsection.
(v) The Secretary of Labor and the Attorney General shall devise a
process under which an H-1B nonimmigrant who files a complaint regarding
a violation of clause (iv) and is otherwise eligible to remain and work
in the United States may be allowed to seek other appropriate employment
in the United States for a period not to exceed the maximum period of
stay authorized for such nonimmigrant classification.
(vi)(I) It is a violation of this clause for an employer who has
filed an application under this subsection to require an H-1B
nonimmigrant to pay a penalty for ceasing employment with the employer
prior to a date agreed to by the nonimmigrant and the employer. The
Secretary shall determine whether a required payment is a penalty (and
not liquidated damages) pursuant to relevant State law.
(II) It is a violation of this clause for an employer who has filed
an application under this subsection to require an alien who is the
subject of a petition filed under section 1184(c)(1) of this title, for
which a fee is imposed under section 1184(c)(9) of this title, to
reimburse, or otherwise compensate, the employer for part or all of the
cost of such fee. It is a violation of this clause for such an employer
otherwise to accept such reimbursement or compensation from such an
alien.
(III) If the Secretary finds, after notice and opportunity for a
hearing, that an employer has committed a violation of this clause, the
Secretary may impose a civil monetary penalty of $1,000 for each such
violation and issue an administrative order requiring the return to the
nonimmigrant of any amount paid in violation of this clause, or, if the
nonimmigrant cannot be located, requiring payment of any such amount to
the general fund of the Treasury.
(vii)(I) It is a failure to meet a condition of paragraph (1)(A) for
an employer, who has filed an application under this subsection and who
places an H-1B nonimmigrant designated as a full-time employee on the
petition filed under section 1184(c)(1) of this title by the employer
with respect to the nonimmigrant, after the nonimmigrant has entered
into employment with the employer, in nonproductive status due to a
decision by the employer (based on factors such as lack of work), or due
to the nonimmigrant's lack of a permit or license, to fail to pay the
nonimmigrant full-time wages in accordance with paragraph (1)(A) for all
such nonproductive time.
(II) It is a failure to meet a condition of paragraph (1)(A) for an
employer, who has filed an application under this subsection and who
places an H-1B nonimmigrant designated as a part-time employee on the
petition filed under section 1184(c)(1) of this title by the employer
with respect to the nonimmigrant, after the nonimmigrant has entered
into employment with the employer, in nonproductive status under
circumstances described in subclause (I), to fail to pay such a
nonimmigrant for such hours as are designated on such petition
consistent with the rate of pay identified on such petition.
(III) In the case of an H-1B nonimmigrant who has not yet entered
into employment with an employer who has had approved an application
under this subsection, and a petition under section 1184(c)(1) of this
title, with respect to the nonimmigrant, the provisions of subclauses
(I) and (II) shall apply to the employer beginning 30 days after the
date the nonimmigrant first is admitted into the United States pursuant
to the petition, or 60 days after the date the nonimmigrant becomes
eligible to work for the employer (in the case of a nonimmigrant who is
present in the United States on the date of the approval of the
petition).
(IV) This clause does not apply to a failure to pay wages to an H-1B
nonimmigrant for nonproductive time due to non-work-related factors,
such as the voluntary request of the nonimmigrant for an absence or
circumstances rendering the nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an employer
that is a school or other educational institution from applying to an H-
1B nonimmigrant an established salary practice of the employer, under
which the employer pays to H-1B nonimmigrants and United States workers
in the same occupational classification an annual salary in
disbursements over fewer than 12 months, if--
(aa) the nonimmigrant agrees to the compressed annual salary
payments prior to the commencement of the employment; and
(bb) the application of the salary practice to the nonimmigrant
does not otherwise cause the nonimmigrant to violate any condition
of the nonimmigrant's authorization under this chapter to remain in
the United States.
(VI) This clause shall not be construed as superseding clause
(viii).
(viii) It is a failure to meet a condition of paragraph (1)(A) for
an employer who has filed an application under this subsection to fail
to offer to an H-1B nonimmigrant, during the nonimmigrant's period of
authorized employment, benefits and eligibility for benefits (including
the opportunity to participate in health, life, disability, and other
insurance plans; the opportunity to participate in retirement and
savings plans; and cash bonuses and noncash compensation, such as stock
options (whether or not based on performance)) on the same basis, and in
accordance with the same criteria, as the employer offers to United
States workers.
(D) If the Secretary finds, after notice and opportunity for a
hearing, that an employer has not paid wages at the wage level specified
under the application and required under paragraph (1), the Secretary
shall order the employer to provide for payment of such amounts of back
pay as may be required to comply with the requirements of paragraph (1),
whether or not a penalty under subparagraph (C) has been imposed.
(E) If an H-1B-dependent employer places a nonexempt H-1B
nonimmigrant with another employer as provided under paragraph (1)(F)
and the other employer has displaced or displaces a United States worker
employed by such other employer during the period described in such
paragraph, such displacement shall be considered for purposes of this
paragraph a failure, by the placing employer, to meet a condition
specified in an application submitted under paragraph (1); except that
the Attorney General may impose a sanction described in subclause (II)
of subparagraph (C)(i), (C)(ii), or (C)(iii) only if the Secretary of
Labor found that such placing employer--
(i) knew or had reason to know of such displacement at the time
of the placement of the nonimmigrant with the other employer; or
(ii) has been subject to a sanction under this subparagraph
based upon a previous placement of an H-1B nonimmigrant with the
same other employer.
(F) The Secretary may, on a case-by-case basis, subject an employer
to random investigations for a period of up to 5 years, beginning on the
date (on or after October 21, 1998) on which the employer is found by
the Secretary to have committed a willful failure to meet a condition of
paragraph (1) (or has been found under paragraph (5) to have committed a
willful failure to meet the condition of paragraph (1)(G)(i)(II)) or to
have made a willful misrepresentation of material fact in an
application. The preceding sentence shall apply to an employer
regardless of whether or not the employer is an H-1B-dependent employer.
The authority of the Secretary under this subparagraph shall not be
construed to be subject to, or limited by, the requirements of
subparagraph (A).
(G)(i) The Secretary of Labor may initiate an investigation of any
employer that employs nonimmigrants described in section
1101(a)(15)(H)(i)(b) of this title if the Secretary of Labor has
reasonable cause to believe that the employer is not in compliance with
this subsection. In the case of an investigation under this clause, the
Secretary of Labor (or the acting Secretary in the case of the absence
of \8\ disability of the Secretary of Labor) shall personally certify
that reasonable cause exists and shall approve commencement of the
investigation. The investigation may be initiated for reasons other than
completeness and obvious inaccuracies by the employer in complying with
this subsection.
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\8\ So in original. Probably should be ``or''.
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(ii) If the Secretary of Labor receives specific credible
information from a source who is likely to have knowledge of an
employer's practices or employment conditions, or an employer's
compliance with the employer's labor condition application under
paragraph (1), and whose identity is known to the Secretary of Labor,
and such information provides reasonable cause to believe that the
employer has committed a willful failure to meet a condition of
paragraph (1)(A), (1)(B), (1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has
engaged in a pattern or practice of failures to meet such a condition,
or has committed a substantial failure to meet such a condition that
affects multiple employees, the Secretary of Labor may conduct an
investigation into the alleged failure or failures. The Secretary of
Labor may withhold the identity of the source from the employer, and the
source's identity shall not be subject to disclosure under section 552
of title 5.
(iii) The Secretary of Labor shall establish a procedure for any
person desiring to provide to the Secretary of Labor information
described in clause (ii) that may be used, in whole or in part, as the
basis for the commencement of an investigation described in such clause,
to provide the information in writing on a form developed and provided
by the Secretary of Labor and completed by or on behalf of the person.
The person may not be an officer or employee of the Department of Labor,
unless the information satisfies the requirement of clause (iv)(II)
(although an officer or employee of the Department of Labor may complete
the form on behalf of the person).
(iv) Any investigation initiated or approved by the Secretary of
Labor under clause (ii) shall be based on information that satisfies the
requirements of such clause and that--
(I) originates from a source other than an officer or employee
of the Department of Labor; or
(II) was lawfully obtained by the Secretary of Labor in the
course of lawfully conducting another Department of Labor
investigation under this chapter of \9\ any other Act.
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\9\ So in original. Probably should be ``or''.
(v) The receipt by the Secretary of Labor of information submitted
by an employer to the Attorney General or the Secretary of Labor for
purposes of securing the employment of a nonimmigrant described in
section 1101(a)(15)(H)(i)(b) of this title shall not be considered a
receipt of information for purposes of clause (ii).
(vi) No investigation described in clause (ii) (or hearing described
in clause (viii) based on such investigation) may be conducted with
respect to information about a failure to meet a condition described in
clause (ii), unless the Secretary of Labor receives the information not
later than 12 months after the date of the alleged failure.
(vii) The Secretary of Labor shall provide notice to an employer
with respect to whom there is reasonable cause to initiate an
investigation described in clauses \10\ (i) or (ii), prior to the
commencement of an investigation under such clauses, of the intent to
conduct an investigation. The notice shall be provided in such a manner,
and shall contain sufficient detail, to permit the employer to respond
to the allegations before an investigation is commenced. The Secretary
of Labor is not required to comply with this clause if the Secretary of
Labor determines that to do so would interfere with an effort by the
Secretary of Labor to secure compliance by the employer with the
requirements of this subsection. There shall be no judicial review of a
determination by the Secretary of Labor under this clause.
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\10\ So in original. Probably should be ``clause''.
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(viii) An investigation under clauses \10\ (i) or (ii) may be
conducted for a period of up to 60 days. If the Secretary of Labor
determines after such an investigation that a reasonable basis exists to
make a finding that the employer has committed a willful failure to meet
a condition of paragraph (1)(A), (1)(B), (1)(C), (1)(E), (1)(F), o