8 USC § 1182 – Inadmissible aliens
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USC § 1182 – Inadmissible aliens
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(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; [1]
(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)—
(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—
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),
(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
(H) Significant traffickers in persons
(i) In general Any
alien who commits or conspires to commit human trafficking offenses in
the United States or outside the United States, or who the consular
officer, the Secretary of Homeland Security, the Secretary of State, 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.
(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—
(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—
(II) a
consular officer, the Attorney General, or the Secretary of Homeland
Security 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;
(VI) is
a member of a terrorist organization described in clause (vi)(III),
unless the alien can demonstrate by clear and convincing evidence that
the alien did not know, and should not reasonably have known, that the
organization was a terrorist organization;
(VII) endorses
or espouses terrorist activity or persuades others to endorse or
espouse terrorist activity or support a terrorist organization;
(VIII) has received military-type training (as defined in section 2339D (c)(1) of title 18)
from or on behalf of any organization that, at the time the training
was received, was a terrorist organization (as defined in clause (vi));
or
(IX) is
the spouse or child of an alien who is inadmissible under this
subparagraph, 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 (IX) of clause (i) does not apply to a spouse or child—
(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:
(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.
(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.
(I) to
commit or to incite to commit, under circumstances indicating an
intention to cause death or serious bodily injury, a terrorist activity;
(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—
(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 subclause (I) or (II) of clause (vi) or to any member of such an organization; or
(dd) to
a terrorist organization described in clause (vi)(III), or to any
member of such an organization, unless the actor can demonstrate by
clear and convincing evidence that the actor did not know, and should
not reasonably have known, that the organization was a terrorist
organization.
(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 or the Secretary of Homeland Security, as a terrorist
organization, after finding that the organization engages in the
activities described in subclauses (I) through (VI) of clause (iv); or
(III) that
is a group of two or more individuals, whether organized or not, which
engages in, or has a subgroup which engages in, the activities described
in subclauses (I) through (VI) 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.
(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.
(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) 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.
(G) Recruitment or use of child soldiers
(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.
(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;
(III) classification or status as a VAWA self-petitioner; 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.
(ii) is an applicant for, or is granted, nonimmigrant status under section 1101 (a)(15)(U) of this title; or
(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.
(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) meet
all applicable statutory and regulatory requirements for entry into the
United States under the classification specified in the application;
(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.
(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.
(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.
(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.
(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.
(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.
(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 and Northern Mariana Islands visa waiver For
provision authorizing waiver of clause (i) in the case of visitors to
Guam or the Commonwealth of the Northern Mariana Islands, see subsection
(l).
(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
(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.
(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) 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.
(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
(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.
(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.
(V) Victims of a severe form of trafficking in persons Clause (i) shall not apply to an alien who demonstrates that the severe form of trafficking (as that term is defined in section 7102 of title 22) was at least one central reason for the alien’s unlawful presence in 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.
(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
Secretary of Homeland Security has consented to the alien’s reapplying
for admission.
(II) the
alien’s removal, departure from the United States, reentry or reentries
into the United States; or 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.
(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.
(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—
(B) lists the specific provision or provisions of law under which the alien is inadmissible or adjustment [4] of status.
(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.
(3)
(A) Except as provided in this subsection, an alien
(i)
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
(ii)
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.
(B)
(i) The
Secretary of State, after consultation with the Attorney General and
the Secretary of Homeland Security, or the Secretary of Homeland
Security, after consultation with the Secretary of State and the
Attorney General, may determine in such Secretary’s sole unreviewable
discretion that subsection (a)(3)(B) shall not apply with respect to an
alien within the scope of that subsection or that subsection
(a)(3)(B)(vi)(III) shall not apply to a group within the scope of that
subsection, except that no such waiver may be extended to an alien who
is within the scope of subsection (a)(3)(B)(i)(II), no such waiver may
be extended to an alien who is a member or representative of, has
voluntarily and knowingly engaged in or endorsed or espoused or
persuaded others to endorse or espouse or support terrorist activity on
behalf of, or has voluntarily and knowingly received military-type
training from a terrorist organization that is described in subclause
(I) or (II) of subsection (a)(3)(B)(vi), and no such waiver may be
extended to a group that has engaged terrorist activity against the
United States or another democratic country or that has purposefully
engaged in a pattern or practice of terrorist activity that is directed
at civilians. Such a determination shall neither prejudice the ability
of the United States Government to commence criminal or civil
proceedings involving a beneficiary of such a determination or any other
person, nor create any substantive or procedural right or benefit for a
beneficiary of such a determination or any other person.
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of title 28,
or any other habeas corpus provision, and sections 1361 and 1651 of
such title, no court shall have jurisdiction to review such a
determination or revocation except in a proceeding for review of a final
order of removal pursuant to section 1252 of this title, and review shall be limited to the extent provided in section 1252 (a)(2)(D).
The Secretary of State may not exercise the discretion provided in this
clause with respect to an alien at any time during which the alien is
the subject of pending removal proceedings under section 1229a of this title.
(ii) Not
later than 90 days after the end of each fiscal year, the Secretary of
State and the Secretary of Homeland Security shall each provide to the
Committees on the Judiciary of the House of Representatives and of the
Senate, the Committee on International Relations of the House of
Representatives, the Committee on Foreign Relations of the Senate, and
the Committee on Homeland Security of the House of Representatives a
report on the aliens to whom such Secretary has applied clause (i).
Within one week of applying clause (i) to a group, the Secretary of
State or the Secretary of Homeland Security shall provide a report to
such Committees.
(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
(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.
(7) The
provisions of subsection (a) of this section (other than paragraph (7))
shall be applicable to any alien who shall leave Guam, the Commonwealth
of the Northern Mariana Islands, 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.
(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.
(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
Secretary of Homeland Security 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 Secretary of Homeland Security considers it to be
in the national interest to do so, the Secretary of Homeland Security,
in the Attorney General’s [6] discretion, may waive the application of—
(ii) any other provision of subsection (a) of this section (excluding paragraphs (3), (4), (10)(C), and (10(E)) [7]
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.
(14) The
Secretary of Homeland Security shall determine whether a ground of
inadmissibility exists with respect to a nonimmigrant described in
section 1101 (a)(15)(U) of this title. The Secretary of Homeland Security, in the Attorney General’s [6]
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 Secretary of Homeland Security 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) orsection 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
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
(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,
(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
(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 a
VAWA self-petitioner, the alien demonstrates extreme hardship to the
alien or the alien’s United States citizen, lawful permanent resident,
or qualified alien parent or child.
(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),
(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).
(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
(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 and Northern Mariana Islands visa waiver program
(1) In general
The requirement of subsection (a)(7)(B)(i) may be waived
by the Secretary of Homeland Security, in the case of an alien applying
for admission as a nonimmigrant visitor for business or pleasure and
solely for entry into and stay in Guam or the Commonwealth of the
Northern Mariana Islands for a period not to exceed 45 days, if the
Secretary of Homeland Security, after consultation with the Secretary of
the Interior, the Secretary of State, the Governor of Guam and the
Governor of the Commonwealth of the Northern Mariana Islands, determines
that—
(2) Alien waiver of rights
An alien may not be provided a waiver under this subsection unless the alien has waived any right—
(3) Regulations
All necessary regulations to implement this subsection
shall be promulgated by the Secretary of Homeland Security, in
consultation with the Secretary of the Interior and the Secretary of
State, on or before the 180th day after May 8, 2008. The promulgation of
such regulations shall be considered a foreign affairs function for
purposes of section 553 (a) of title 5. At a minimum, such regulations should include, but not necessarily be limited to—
(A) a
listing of all countries whose nationals may obtain the waiver also
provided by this subsection, except that such regulations shall provide
for a listing of any country from which the Commonwealth has received a
significant economic benefit from the number of visitors for pleasure
within the one-year period preceding May 8, 2008, unless the Secretary
of Homeland Security determines that such country’s inclusion on such
list would represent a threat to the welfare, safety, or security of the
United States or its territories; and
(4) Factors
In determining whether to grant or continue providing the
waiver under this subsection to nationals of any country, the Secretary
of Homeland Security, in consultation with the Secretary of the Interior
and the Secretary of State, shall consider all factors that the
Secretary deems relevant, including electronic travel authorizations,
procedures for reporting lost and stolen passports, repatriation of
aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit
systems, and information exchange.
(5) Suspension
The Secretary of Homeland Security shall monitor the
admission of nonimmigrant visitors to Guam and the Commonwealth of the
Northern Mariana Islands under this subsection. If the Secretary
determines that such admissions have resulted in an unacceptable number
of visitors from a country remaining unlawfully in Guam or the
Commonwealth of the Northern Mariana Islands, unlawfully obtaining entry
to other parts of the United States, or seeking withholding of removal
or asylum, or that visitors from a country pose a risk to law
enforcement or security interests of Guam or the Commonwealth of the
Northern Mariana Islands or of the United States (including the interest
in the enforcement of the immigration laws of the United States), the
Secretary shall suspend the admission of nationals of such country under
this subsection. The Secretary of Homeland Security may in the
Secretary’s discretion suspend the Guam and Northern Mariana Islands
visa waiver program at any time, on a country-by-country basis, for
other good cause.
(6) Addition of countries
The Governor of Guam and the Governor of the Commonwealth
of the Northern Mariana Islands may request the Secretary of the
Interior and the Secretary of Homeland Security to add a particular
country to the list of countries whose nationals may obtain the waiver
provided by this subsection, and the Secretary of Homeland Security may
grant such request after consultation with the Secretary of the Interior
and the Secretary of State, and may promulgate regulations with respect
to the inclusion of that country and any special requirements the
Secretary of Homeland Security, in the Secretary’s sole discretion, may
impose prior to allowing nationals of that country to obtain the waiver
provided by 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:
(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.
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
(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.
(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;
(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—
(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
whichever is greater, based on the best information available as of the time of filing the application, and
(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 [8]
by an H–1B-dependent employer (as defined in paragraph (3)) or by an
employer that has been found, on or after October 21, 1998, under
paragraph (2)(C) or (5) to have committed a willful failure or
misrepresentation during the 5-year period preceding the filing of the
application. An application is not described in this clause if the only
H–1B nonimmigrants sought in the application are exempt H–1B
nonimmigrants.
(F) In
the case of an application described in subparagraph (E)(ii), the
employer will not place the nonimmigrant with another employer
(regardless of whether or not such other employer is an H–1B-dependent
employer) where—
(i) the
nonimmigrant performs duties in whole or in part at one or more
worksites owned, operated, or controlled by such other employer; and
(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer;
unless the employer has inquired of the other employer as
to whether, and has no knowledge that, within the period beginning 90
days before and ending 90 days after the date of the placement of the
nonimmigrant with the other employer, the other employer has displaced
or intends to displace a United States worker employed by the other
employer.
(G)
(i) In
the case of an application described in subparagraph (E)(ii), subject
to clause (ii), the employer, prior to filing the application—
(I) has
taken good faith steps to recruit, in the United States using
procedures that meet industry-wide standards and offering compensation
that is at least as great as that required to be offered to H–1B
nonimmigrants under subparagraph (A), United States workers for the job
for which the nonimmigrant or nonimmigrants is or are sought; and
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—
(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)—
(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—
(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—
(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—
(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 [9]
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.
(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—
(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.
(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.
(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), 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 shall provide for notice of
such determination to the interested parties and an opportunity for a
hearing in accordance with section 556 of title 5
within 120 days after the date of the determination. If such a hearing
is requested, the Secretary of Labor shall make a finding concerning the
matter by not later than 120 days after the date of the hearing.
(H)
(i) Except
as provided in clauses (ii) and (iii), a person or entity is considered
to have complied with the requirements of this subsection,
notwithstanding a technical or procedural failure to meet such
requirements, if there was a good faith attempt to comply with the
requirements.
(ii) Clause (i) shall not apply if—
(I) the Department of Labor (or another enforcement agency) has explained to the person or entity the basis for the failure;
(iii) A
person or entity that, in the course of an investigation, is found to
have violated the prevailing wage requirements set forth in paragraph
(1)(A), shall not be assessed fines or other penalties for such
violation if the person or entity can establish that the manner in which
the prevailing wage was calculated was consistent with recognized
industry standards and practices.
(I) Nothing
in this subsection shall be construed as superseding or preempting any
other enforcement-related authority under this chapter (such as the
authorities under section 1324b of this title), or any other Act.
(3)
(A) For purposes of this subsection, the term “H–1B-dependent employer” means an employer that—
(B) For purposes of this subsection—
(C) For purposes of subparagraph (A)—
(i) in
computing the number of full-time equivalent employees and the number
of H–1B nonimmigrants, exempt H–1B nonimmigrants shall not be taken into
account during the longer of—
(ii) any group treated as a single employer under subsection (b), (c), (m), or (o) ofsection 414 of title 26 shall be treated as a single employer.
(4) For purposes of this subsection:
(A) The
term “area of employment” means the area within normal commuting
distance of the worksite or physical location where the work of the H–1B
nonimmigrant is or will be performed. If such worksite or location is
within a Metropolitan Statistical Area, any place within such area is
deemed to be within the area of employment.
(B) In
the case of an application with respect to one or more H–1B
nonimmigrants by an employer, the employer is considered to “displace” a
United States worker from a job if the employer lays off the worker
from a job that is essentially the equivalent of the job for which the
nonimmigrant or nonimmigrants is or are sought. A job shall not be
considered to be essentially equivalent of another job unless it
involves essentially the same responsibilities, was held by a United
States worker with substantially equivalent qualifications and
experience, and is located in the same area of employment as the other
job.
(C) The term “H–1B nonimmigrant” means an alien admitted or provided status as a nonimmigrant described in section 1101 (a)(15)(H)(i)(b) of this title.
(D)
(i) The term “lays off”, with respect to a worker—
(I) means
to cause the worker’s loss of employment, other than through a
discharge for inadequate performance, violation of workplace rules,
cause, voluntary departure, voluntary retirement, or the expiration of a
grant or contract (other than a temporary employment contract entered
into in order to evade a condition described in subparagraph (E) or (F)
of paragraph (1)); but
(II) does
not include any situation in which the worker is offered, as an
alternative to such loss of employment, a similar employment opportunity
with the same employer (or, in the case of a placement of a worker with
another employer under paragraph (1)(F), with either employer described
in such paragraph) at equivalent or higher compensation and benefits
than the position from which the employee was discharged, regardless of
whether or not the employee accepts the offer.
(5)
(A) This
paragraph shall apply instead of subparagraphs (A) through (E) of
paragraph (2) in the case of a violation described in subparagraph (B),
but shall not be construed to limit or affect the authority of the
Secretary or the Attorney General with respect to any other violation.
(B) The
Attorney General shall establish a process for the receipt, initial
review, and disposition in accordance with this paragraph of complaints
respecting an employer’s failure to meet the condition of paragraph
(1)(G)(i)(II) or a petitioner’s misrepresentation of material facts with
respect to such condition. Complaints may be filed by an aggrieved
individual who has submitted a resume or otherwise applied in a
reasonable manner for the job that is the subject of the condition. No
proceeding shall be conducted under this paragraph on a complaint
concerning such a failure or misrepresentation unless the Attorney
General determines that the complaint was filed not later than 12 months
after the date of the failure or misrepresentation, respectively.
(C) If
the Attorney General finds that a complaint has been filed in
accordance with subparagraph (B) and there is reasonable cause to
believe that such a failure or misrepresentation described in such
complaint has occurred, the Attorney General shall initiate binding
arbitration proceedings by requesting the Federal Mediation and
Conciliation Service to appoint an arbitrator from the roster of
arbitrators maintained by such Service. The procedure and rules of such
Service shall be applicable to the selection of such arbitrator and to
such arbitration proceedings. The Attorney General shall pay the fee and
expenses of the arbitrator.
(D)
(i) The
arbitrator shall make findings respecting whether a failure or
misrepresentation described in subparagraph (B) occurred. If the
arbitrator concludes that failure or misrepresentation was willful, the
arbitrator shall make a finding to that effect. The arbitrator may not
find such a failure or misrepresentation (or that such a failure or
misrepresentation was willful) unless the complainant demonstrates such a
failure or misrepresentation (or its willful character) by clear and
convincing evidence. The arbitrator shall transmit the findings in the
form of a written opinion to the parties to the arbitration and the
Attorney General. Such findings shall be final and conclusive, and,
except as provided in this subparagraph, no official or court of the
United States shall have power or jurisdiction to review any such
findings.
(ii) The
Attorney General may review and reverse or modify the findings of an
arbitrator only on the same bases as an award of an arbitrator may be
vacated or modified under section 10 or 11 of title 9.
(iii) With
respect to the findings of an arbitrator, a court may review only the
actions of the Attorney General under clause (ii) and may set aside such
actions only on the grounds described in subparagraph (A), (B), or (C)
of section 706 (a)(2) of title 5.
Notwithstanding any other provision of law, such judicial review may
only be brought in an appropriate United States court of appeals.
(E) If
the Attorney General receives a finding of an arbitrator under this
paragraph that an employer has failed to meet the condition of paragraph
(1)(G)(i)(II) or has misrepresented a material fact with respect to
such condition, unless the Attorney General reverses or modifies the
finding under subparagraph (D)(ii)—
(i) the
Attorney General may impose administrative remedies (including civil
monetary penalties in an amount not to exceed $1,000 per violation or
$5,000 per violation in the case of a willful failure or
misrepresentation) as the Attorney General determines to be appropriate;
and
(F) The
Attorney General shall not delegate, to any other employee or official
of the Department of Justice, any function of the Attorney General under
this paragraph, until 60 days after the Attorney General has submitted a
plan for such delegation to the Committees on the Judiciary of the
United States House of Representatives and the Senate.
(p) Computation of prevailing wage level
(1) In
computing the prevailing wage level for an occupational classification
in an area of employment for purposes of subsections (a)(5)(A),
(n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section in the case of an
employee of—
(A) an institution of higher education (as defined in section 1001 (a) of title 20), or a related or affiliated nonprofit entity; or
the prevailing wage level shall only take into account
employees at such institutions and organizations in the area of
employment.
(2) With
respect to a professional athlete (as defined in subsection
(a)(5)(A)(iii)(II) of this section) when the job opportunity is covered
by professional sports league rules or regulations, the wage set forth
in those rules or regulations shall be considered as not adversely
affecting the wages of United States workers similarly employed and be
considered the prevailing wage.
(3) The
prevailing wage required to be paid pursuant to subsections (a)(5)(A),
(n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section shall be 100
percent of the wage determined pursuant to those sections.
(4) Where
the Secretary of Labor uses, or makes available to employers, a
governmental survey to determine the prevailing wage, such survey shall
provide at least 4 levels of wages commensurate with experience,
education, and the level of supervision. Where an existing government
survey has only 2 levels, 2 intermediate levels may be created by
dividing by 3, the difference between the 2 levels offered, adding the
quotient thus obtained to the first level and subtracting that quotient
from the second level.
(q) Academic honoraria
Any alien admitted under section 1101 (a)(15)(B)
of this title may accept an honorarium payment and associated
incidental expenses for a usual academic activity or activities (lasting
not longer than 9 days at any single institution), as defined by the
Attorney General in consultation with the Secretary of Education, if
such payment is offered by an institution or organization described in
subsection (p)(1) of this section and is made for services conducted for
the benefit of that institution or entity and if the alien has not
accepted such payment or expenses from more than 5 institutions or
organizations in the previous 6-month period.
(r) Exception for certain alien nurses
Subsection (a)(5)(C) of this section shall not apply to an
alien who seeks to enter the United States for the purpose of performing
labor as a nurse who presents to the consular officer (or in the case
of an adjustment of status, the Attorney General) a certified statement
from the Commission on Graduates of Foreign Nursing Schools (or an
equivalent independent credentialing organization approved for the
certification of nurses under subsection (a)(5)(C) of this section by
the Attorney General in consultation with the Secretary of Health and
Human Services) that—
(1) the
alien has a valid and unrestricted license as a nurse in a State where
the alien intends to be employed and such State verifies that the
foreign licenses of alien nurses are authentic and unencumbered;
(3) the alien is a graduate of a nursing program—
(B) located in a country—
(i) designated
by such commission not later than 30 days after November 12, 1999,
based on such commission’s assessment that the quality of nursing
education in that country, and the English language proficiency of those
who complete such programs in that country, justify the country’s
designation; or
(s) Consideration of benefits received as battered alien in determination of inadmissibility as likely to become public charge
In determining whether an alien described in subsection
(a)(4)(C)(i) of this section is inadmissible under subsection (a)(4) of
this section or ineligible to receive an immigrant visa or otherwise to
adjust to the status of permanent resident by reason of subsection
(a)(4) of this section, the consular officer or the Attorney General
shall not consider any benefits the alien may have received that were
authorized under section 1641 (c) of this title.
(t) 11 Nonimmigrant professionals; labor attestations
(1) No alien may be admitted or provided status as a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title in an occupational classification unless the employer has
filed with the Secretary of Labor an attestation stating the following:
(A) The employer—
(i) is offering and will offer during the period of authorized employment to aliens admitted or provided status under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title 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
whichever is greater, based on the best information available as of the time of filing the attestation; and
(B) There
is not a strike or lockout in the course of a labor dispute in the
occupational classification at the place of employment.
(C) The employer, at the time of filing the attestation—
(i) has
provided notice of the filing under this paragraph to the bargaining
representative (if any) of the employer’s employees in the occupational
classification and area for which aliens are sought; or
(ii) if
there is no such bargaining representative, has provided notice of
filing in the occupational classification through such methods as
physical posting in conspicuous locations at the place of employment or
electronic notification to employees in the occupational classification
for which nonimmigrants under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title are sought.
(2)
(A) The
employer shall make available for public examination, within one
working day after the date on which an attestation under this subsection
is filed, at the employer’s principal place of business or worksite, a
copy of each such attestation (and such accompanying documents as are
necessary).
(B)
(i) The
Secretary of Labor shall compile, on a current basis, a list (by
employer and by occupational classification) of the attestations filed
under this subsection. Such list shall include, with respect to each
attestation, the wage rate, number of aliens sought, period of intended
employment, and date of need.
(C) The
Secretary of Labor shall review an attestation filed under this
subsection only for completeness and obvious inaccuracies. Unless the
Secretary of Labor finds that an attestation is incomplete or obviously
inaccurate, the Secretary of Labor shall provide the certification
described in section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title within 7 days of the date of the filing of the attestation.
(3)
(A) The
Secretary of Labor shall establish a process for the receipt,
investigation, and disposition of complaints respecting the failure of
an employer to meet a condition specified in an attestation submitted
under this subsection or misrepresentation by the employer of material
facts in such an attestation. Complaints may be filed by any aggrieved
person or organization (including bargaining representatives). No
investigation or hearing shall be conducted on a complaint concerning
such a failure or misrepresentation unless the complaint was filed not
later than 12 months after the date of the failure or misrepresentation,
respectively. The Secretary of Labor shall conduct an investigation
under this paragraph if there is reasonable cause to believe that such a
failure or misrepresentation has occurred.
(B) Under
the process described in subparagraph (A), the Secretary of Labor shall
provide, within 30 days after the date a complaint is filed, for a
determination as to whether or not a reasonable basis exists to make a
finding described in subparagraph (C). If the Secretary of Labor
determines that such a reasonable basis exists, the Secretary of Labor
shall provide for notice of such determination to the interested parties
and an opportunity for a hearing on the complaint, in accordance with
section 556 of title 5,
within 60 days after the date of the determination. If such a hearing
is requested, the Secretary of Labor 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
of Labor may consolidate the hearings under this subparagraph on such
complaints.
(C)
(i) If
the Secretary of Labor finds, after notice and opportunity for a
hearing, a failure to meet a condition of paragraph (1)(B), a
substantial failure to meet a condition of paragraph (1)(C) or (1)(D),
or a misrepresentation of material fact in an attestation—
(I) the
Secretary of Labor shall notify the Secretary of State and the
Secretary of Homeland Security of such finding and may, in addition,
impose such other administrative remedies (including civil monetary
penalties in an amount not to exceed $1,000 per violation) as the
Secretary of Labor determines to be appropriate; and
(II) the
Secretary of State or the Secretary of Homeland Security, as
appropriate, shall not approve petitions or applications filed with
respect to that employer under section 1154, 1184 (c), 1101 (a)(15)(H)(i)(b1), or 1101 (a)(15)(E)(iii) of this title during a period of at least 1 year for aliens to be employed by the employer.
(ii) If
the Secretary of Labor finds, after notice and opportunity for a
hearing, a willful failure to meet a condition of paragraph (1), a
willful misrepresentation of material fact in an attestation, or a
violation of clause (iv)—
(I) the
Secretary of Labor shall notify the Secretary of State and the
Secretary of Homeland Security of such finding and may, in addition,
impose such other administrative remedies (including civil monetary
penalties in an amount not to exceed $5,000 per violation) as the
Secretary of Labor determines to be appropriate; and
(II) the
Secretary of State or the Secretary of Homeland Security, as
appropriate, shall not approve petitions or applications filed with
respect to that employer under section 1154, 1184 (c), 1101 (a)(15)(H)(i)(b1), or 1101 (a)(15)(E)(iii) of this title during a period of at least 2 years for aliens to be employed by the employer.
(iii) If
the Secretary of Labor finds, after notice and opportunity for a
hearing, a willful failure to meet a condition of paragraph (1) or a
willful misrepresentation of material fact in an attestation, in the
course of which failure or misrepresentation the employer displaced a
United States worker employed by the employer within the period
beginning 90 days before and ending 90 days after the date of filing of
any visa petition or application supported by the attestation—
(I) the
Secretary of Labor shall notify the Secretary of State and the
Secretary of Homeland Security of such finding and may, in addition,
impose such other administrative remedies (including civil monetary
penalties in an amount not to exceed $35,000 per violation) as the
Secretary of Labor determines to be appropriate; and
(II) the
Secretary of State or the Secretary of Homeland Security, as
appropriate, shall not approve petitions or applications filed with
respect to that employer under section 1154, 1184 (c), 1101 (a)(15)(H)(i)(b1), or 1101 (a)(15)(E)(iii) 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
attestation under this subsection to intimidate, threaten, restrain,
coerce, blacklist, discharge, or in any other manner discriminate
against an employee (which term, for purposes of this clause, includes a
former employee and an applicant for employment) because the employee
has disclosed information to the employer, or to any other person, that
the employee reasonably believes evidences a violation of this
subsection, or any rule or regulation pertaining to this subsection, or
because the employee cooperates or seeks to cooperate in an
investigation or other proceeding concerning the employer’s compliance
with the requirements of this subsection or any rule or regulation
pertaining to this subsection.
(v) The Secretary of Labor and the Secretary of Homeland Security shall devise a process under which a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title 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
attestation under this subsection to require a nonimmigrant under
section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title to pay a penalty for ceasing employment with the employer
prior to a date agreed to by the nonimmigrant and the employer. The
Secretary of Labor shall determine whether a required payment is a
penalty (and not liquidated damages) pursuant to relevant State law.
(II) If
the Secretary of Labor finds, after notice and opportunity for a
hearing, that an employer has committed a violation of this clause, the
Secretary of Labor may impose a civil monetary penalty of $1,000 for
each such violation and issue an administrative order requiring the
return to the nonimmigrant of any amount paid in violation of this
clause, or, if the nonimmigrant cannot be located, requiring payment of
any such amount to the general fund of the Treasury.
(vii)
(I) It
is a failure to meet a condition of paragraph (1)(A) for an employer
who has filed an attestation under this subsection and who places a
nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title designated as a full-time employee in the attestation,
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 attestation under this subsection and who places a
nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title designated as a part-time employee in the attestation,
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 the
attestation consistent with the rate of pay identified on the
attestation.
(III) In the case of a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title who has not yet entered into employment with an employer
who has had approved an attestation under this subsection 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, 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 attestation filed with the Secretary of Labor.
(IV) This clause does not apply to a failure to pay wages to a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title 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 a nonimmigrant
under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title an established salary practice of the employer, under which the employer pays to nonimmigrants under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title and United States workers in the same occupational
classification an annual salary in disbursements over fewer than 12
months, if—
(viii) It
is a failure to meet a condition of paragraph (1)(A) for an employer
who has filed an attestation under this subsection to fail to offer to a
nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title, 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 non-cash 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 of Labor finds, after notice and opportunity for a
hearing, that an employer has not paid wages at the wage level specified
in the attestation and required under paragraph (1), the Secretary of
Labor shall order the employer to provide for payment of such amounts of
back pay as may be required to comply with the requirements of
paragraph (1), whether or not a penalty under subparagraph (C) has been
imposed.
(E) The
Secretary of Labor may, on a case-by-case basis, subject an employer to
random investigations for a period of up to 5 years, beginning on the
date on which the employer is found by the Secretary of Labor to have
committed a willful failure to meet a condition of paragraph (1) or to
have made a willful misrepresentation of material fact in an
attestation. The authority of the Secretary of Labor under this
subparagraph shall not be construed to be subject to, or limited by, the
requirements of subparagraph (A).
(F) Nothing
in this subsection shall be construed as superseding or preempting any
other enforcement-related authority under this chapter (such as the
authorities under section 1324b of this title), or any other Act.
(4) For purposes of this subsection:
(A) The
term “area of employment” means the area within normal commuting
distance of the worksite or physical location where the work of the
nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title is or will be performed. If such worksite or location is
within a Metropolitan Statistical Area, any place within such area is
deemed to be within the area of employment.
(B) In the case of an attestation with respect to one or more nonimmigrants under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii)
of this title by an employer, the employer is considered to “displace” a
United States worker from a job if the employer lays off the worker
from a job that is essentially the equivalent of the job for which the
nonimmigrant or nonimmigrants is or are sought. A job shall not be
considered to be essentially equivalent of another job unless it
involves essentially the same responsibilities, was held by a United
States worker with substantially equivalent qualifications and
experience, and is located in the same area of employment as the other
job.
(C)
(i) The term “lays off”, with respect to a worker—
(I) means
to cause the worker’s loss of employment, other than through a
discharge for inadequate performance, violation of workplace rules,
cause, voluntary departure, voluntary retirement, or the expiration of a
grant or contract; but
(II) does
not include any situation in which the worker is offered, as an
alternative to such loss of employment, a similar employment opportunity
with the same employer at equivalent or higher compensation and
benefits than the position from which the employee was discharged,
regardless of whether or not the employee accepts the offer.
(t) 12 Foreign residence requirement
(1) Except as provided in paragraph (2), no person admitted under section 1101 (a)(15)(Q)(ii)(I)
of this title, or acquiring such status after admission, shall be
eligible to apply for nonimmigrant status, an immigrant visa, or
permanent residence under this chapter until it is established that such
person has resided and been physically present in the person’s country
of nationality or last residence for an aggregate of at least 2 years
following departure from the United States.
(2) The
Secretary of Homeland Security may waive the requirement of such 2-year
foreign residence abroad if the Secretary determines that—
[1] So in original. The semicolon probably should be a comma. [2] See References in Text note below.
[3] So in original. Probably should be a reference to section 1229c of this title.
[4] So in original. Probably should be preceded by “ineligible for”.
[5] So in original.
[6] So in original. Probably should be “Secretary’s”.
[7] So in original. Probably should be “(10)(E))”.
[8] So in original.
[9] So in original. Probably should be “or”.
[10] So in original. Probably should be “clause”.
[11] So in original. Two subsecs. (t) have been enacted.
[12] So in original. Two subsecs. (t) have been enacted.
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