[House Report 117-404]
[From the U.S. Government Publishing Office]
117th Congress} { Report
2d Session } HOUSE OF REPRESENTATIVES { 117-404
======================================================================
VIRGIN ISLANDS VISA WAIVER ACT OF 2022
_______
July 12, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 5460]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5460) to establish the Virgin Islands visa waiver
program, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 4
Hearings......................................................... 6
Committee Consideration.......................................... 7
Committee Votes.................................................. 7
Committee Oversight Findings..................................... 17
Committee Estimate of Budgetary Effects.......................... 17
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 17
Duplication of Federal Programs.................................. 19
Performance Goals and Objectives................................. 19
Advisory on Earmarks............................................. 19
Section-by-Section Analysis...................................... 19
Changes in Existing Law Made by the Bill, as Reported............ 20
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Virgin Islands Visa Waiver Act of
2022''.
SEC. 2. ADDITION OF VIRGIN ISLANDS VISA WAIVER TO GUAM AND NORTHERN
MARIANA ISLANDS VISA WAIVER.
(a) In General.--Section 212(l) of the Immigration and Nationality
Act (8 U.S.C. 1182(l)) is amended to read as follows:
``(l) Guam and Northern Mariana Islands Visa Waiver Program; Virgin
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, or the Virgin Islands of the United States, 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, and the Governor of Guam and
the Governor of the Commonwealth of the Northern Mariana
Islands, or the Governor of the Virgin Islands of the United
States, as the case may be, determines that--
``(A) an adequate arrival and departure control
system has been developed in Guam and the Commonwealth
of the Northern Mariana Islands, or the Virgin Islands
of the United States; and
``(B) such a waiver does not represent a threat to
the welfare, safety, or security of the United States
or its territories and commonwealths.
``(2) Alien waiver of rights.--An alien may not be provided a
waiver under this subsection unless the alien has waived any
right--
``(A) to review or appeal under this Act an
immigration officer's determination as to the
admissibility of the alien at the port of entry into
Guam or the Commonwealth of the Northern Mariana
Islands, or the Virgin Islands of the United States; or
``(B) to contest, other than on the basis of an
application for withholding of removal under section
241(b)(3) of this Act or under the Convention Against
Torture, or an application for asylum if permitted
under section 208 of this Act, any action for removal
of the alien.
``(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. The promulgation of such
regulations shall be considered a foreign affairs function for
purposes of section 553(a) of title 5, United States Code. At a
minimum, such regulations should include, but not necessarily
be limited to--
``(A) a listing of all countries whose nationals may
obtain the waivers provided by this subsection; and
``(B) any bonding requirements for nationals of some
or all of those countries who may present an increased
risk of overstays or other potential problems, if
different from such requirements otherwise provided by
law for nonimmigrant visitors.
``(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, and the Virgin
Islands of the United States, 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, or the Virgin Islands of the United States, 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 Virgin Islands of the United States, 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, or the Virgin 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,
or the Governor of the Virgin Islands of the United States, 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.''.
(b) Regulations Deadline.--Not later than one year after the date of
enactment of this Act, the Secretary of Homeland Security, in
consultation with the Secretary of the Interior and the Secretary of
State, shall promulgate any necessary regulations to implement the
waiver provided in the amendment made by subsection (a) for the Virgin
Islands of the United States.
(c) Waiver Countries.--The regulations described in subsection (b)
shall include a listing of all member or associate member countries of
the Caribbean Community whose nationals may obtain, on a country-by-
country basis, the waiver provided by this section, except that such
regulations shall not provide for a listing of any country if 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 commonwealths, or
would increase fraud or abuse of the nonimmigrant visa system.
(d) Conforming Amendments.--
(1) Documentation requirements.--Section 212(a)(7)(B)(iii) of
the Immigration and Nationality Act (8 U.S.C.
1182(a)(7)(B)(iii)) is amended to read as follows:
``(iii) Special visa waiver programs.--For a
provision authorizing waiver of clause (i) in
the case of visitors to Guam or the
Commonwealth of the Northern Mariana Islands,
or the Virgin Islands of the United States, see
subsection (l).''.
(2) Admission of nonimmigrants.--Section 214(a)(1) of such
Act (8 U.S.C. 1184(a)(1)) is amended by striking ``Guam or the
Commonwealth of the Northern Mariana Islands'' each place such
term appears and inserting ``Guam or the Commonwealth of the
Northern Mariana Islands, or the Virgin Islands of the United
States''.
(e) Fees.--The Secretary of Homeland Security shall establish an
administrative processing fee to be charged and collected from
individuals seeking to enter the Virgin Islands of the United States in
accordance with section 212(l) of the Immigration and Nationality Act
(8 U.S.C. 1182(l)), as amended by this Act. Such fee shall be set at a
level that will ensure recovery of the full costs of such processing,
any additional costs associated with the administration of the fees
collected, and any sums necessary to offset reduced collections of the
nonimmigrant visa fee or the electronic travel authorization fee that
otherwise would have been collected from such individuals.
Purpose and Summary
H.R. 5460, the ``Virgin Islands Visa Waiver Act of 2022,''
would allow the Department of Homeland Security (DHS) to create
a visa waiver program limited to the U.S. Virgin Islands
(USVI), permitting visitors for tourism, business, or medical
purposes from certain countries to enter only the USVI without
seeking a visa from the Department of State. A limited visa
waiver program already exists for the U.S. territories of Guam
and the Commonwealth of the Northern Mariana Islands (CNMI).
To determine which countries to include in the USVI Visa
Waiver Program, H.R. 5460 authorizes the Secretary to apply the
same criteria currently used in the Guam-CNMI Visa Waiver
Program. Such criteria shall include regulatory provisions
preventing recalcitrant countries from remaining in the Guam-
CNMI Visa Waiver Program. H.R. 5460 also requires the Secretary
to consider countries in the Caribbean Community for inclusion
in the USVI Visa Waiver Program, but explicitly prohibits
inclusion of countries if such inclusion would increase fraud
or abuse in our nonimmigrant visa system.
Background and Need for the Legislation
The Immigration and Nationality Act (INA) sets forth the
basic structure of current immigration law, including a
``preference system'' for the distribution of immigrant visas.
This structure was established in 1952, when Congress passed
the McCarran Walter Act.\1\ In general, temporary foreign
visitors from most countries must obtain a B nonimmigrant visa
from a Department of State consular officer before coming to
the United States.\2\
---------------------------------------------------------------------------
\1\Pub. L. No. 82-414 (June 27, 1952).
\2\See INA 101(a)(15)(B); 8 U.S.C. 1101(a)(15)(B).
---------------------------------------------------------------------------
In-person interviews are generally required, and consular
officers use the Consular Consolidated Database to screen visa
applicants.\3\ However, nearly a third of all visitors to the
United States enter through the Visa Waiver Program (VWP).\4\
The VWP allows nationals from 40 countries--many of which are
in Europe--to enter the United States for up to 90 days as
temporary visitors for business or pleasure without first
obtaining a visa.\5\
---------------------------------------------------------------------------
\3\Visa Waiver Program, Congressional Research Service (Oct. 12,
2021), https://sgp.fas.org/crs/homesec/RL32221.pdf.
\4\Id.
\5\See id. and INA 217; 8 U.S.C. 1187.
---------------------------------------------------------------------------
A. THE U.S. VISA WAIVER PROGRAM
The VWP was originally established in 1986 as a trial
program.\6\ Congress made the program permanent in 2000, and
made improvements to the security of the program, including by
requiring that VWP countries issue machine-readable passports
that contain biometric identifiers, and certify--to the maximum
extent permissible under the law--that each foreign national
admitted to or departing from that country is screened against
international security databases, such as INTERPOL.\7\
---------------------------------------------------------------------------
\6\Visa Waiver Program, Congressional Research Service (Oct. 12,
2021).
\7\Pub. L. 106-396; 114 Stat. 1637 (2000).
---------------------------------------------------------------------------
Today, under the VWP, visitors must be approved through the
Electronic System for Travel Authorization (ESTA), an automated
system that determines eligibility for travelers.\8\ Such
visitors are then inspected by U.S. officials when they arrive
at a U.S. port of entry. In addition, prior to arrival, all
airline and commercial vessels departing from a foreign country
destined for a U.S. port of entry must send an electronic
passenger manifest. This manifest is checked against security
databases.\9\
---------------------------------------------------------------------------
\8\Electronic System for Travel Authorization, U.S. Customs and
Border Protection, https://www.cbp.gov/travel/international-visitors/
esta.
\9\Pub. L. 106-396.
---------------------------------------------------------------------------
B. GUAM-CNMI VISA WAIVER PROGRAM
Guam and the CNMI are U.S. territories located in the
western Pacific Ocean, nearly 4,000 miles southwest of Hawaii.
On May 8, 2008, then-President George W. Bush signed into law
the Consolidated Natural Resources Act of 2008 (CNRA), which
included an extension of U.S. immigration laws to the CNMI.\10\
The CNRA also amended the Immigration and Nationality Act (INA)
to authorize the Secretary of Homeland Security to create a
limited visa waiver program to travel only to Guam and the CNMI
without a visa for forty-five days.\11\
---------------------------------------------------------------------------
\10\Pub. L. 110-229, 122 Stat. 754, Sec. 702(a) (2008).
\11\Id. and INA 212(l); 8 U.S.C. 1182(l).
---------------------------------------------------------------------------
The Guam-CNMI Visa Waiver Program could only be created
after an adequate arrival and departure control system was
established on the Islands.\12\ Visitors through this program
must either obtain an ESTA or file Form I-736 at a port of
entry providing background information on potential
inadmissibility.\13\
---------------------------------------------------------------------------
\12\See Pub. L. 110-229 Sec. 702(a), and 74 Fed. Reg. 2824, 2826
(Mar. 23, 2011).
\13\CBP Announces Electronic Version of Form I-736 for GUAM-CNMI
Visa Waiver Program Travelers, U.S. Customs and Border Protection,
https://www.cbp.gov/newsroom/national-media-release/cbp-announces-
electronic-version-form-i-736-guam-cnmi-visa-waiver.
---------------------------------------------------------------------------
Today, twelve countries/geographic areas participate in the
Guam-CNMI Visa Waiver Program, and only five of these--the Hong
Kong Special Administrative Region (HKSAR), Malaysia, Nauru,
Papua New Guinea, and Singapore--do not participate in the U.S.
VWP.\14\ In making the initial determination as to which
countries may be eligible for the Guam-CNMI Visa Waiver
program, the CNRA required DHS to balance the economic benefits
of tourism from a potential visa waiver country with concerns
regarding the welfare, safety, or security of the United
States.\15\ Tourism has long been an important part of the
territories' economies.\16\
---------------------------------------------------------------------------
\14\See id. and Visa Waiver Program, Dep't of State, https://
travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-
program.html.
\15\See Pub. L. 110-229 Sec. 702(a), and 74 Fed. Reg. at 2826.
\16\See, e.g., Northern Mariana Islands--Economic Indicators,
Moody's Analytics, https://www.economy.com/northern-mariana-islands/
indicators#FACTBOOK.
---------------------------------------------------------------------------
DHS may add countries at the request of the Governors of
Guam and the CNMI if the Secretary determines, in his or her
sole discretion, that inclusion of such countries otherwise
meets statutory criteria related to ensuring the welfare,
safety and security of the United States.\17\ After inclusion
of countries in the program, DHS must continue to monitor the
admission of nonimmigrant visitors to Guam and the CNMI through
the Guam-CNMI Visa Waiver Program, and suspend the admission of
nationals from a country if the Secretary determines that
admissions from that country have resulted in--
---------------------------------------------------------------------------
\17\INA 212(l); 8 U.S.C. 1182(l).
---------------------------------------------------------------------------
an unacceptable number of individuals
overstaying their visa;
unlawful entry into other parts of the United
States; or
a large number of visitors seeking withholding
of removal or seeking asylum.
DHS must also suspend admissions from a country if it is
determined that visitors from that country pose a risk to the
law enforcement or security interests of the United States,
including the interest in the enforcement of U.S. immigration
laws.\18\
---------------------------------------------------------------------------
\18\INA 212(1); 8 U.S.C. 1182(1).
---------------------------------------------------------------------------
C. THE VIRGIN ISLANDS OF THE UNITED STATES
The U.S. Virgin Islands (USVI) are located about 45 miles
east of Puerto Rico and about 1,000 miles southeast of Miami,
Florida, outside of the U.S. Customs Zone. The three larger
islands--St. Croix, St. Thomas, and St. John--are home to
nearly all of the roughly 105,000 people living in the USVI.
The USVI capital, Charlotte Amalie, is located on St. Thomas,
which is the primary center for tourism, government, and
commerce. In recent years, tourism and related trade, have
become the predominant component of the economy of the USVI.
In 2017, Hurricanes Maria and Irma devastated the USVI's
economy and tourism infrastructure. Prior to 2017, 1.2 million
cruise passengers and about 400,000 airplane passengers arrived
each year. After, tourism fell drastically and employment in
the leisure and hospitality sector fell by 2,200 jobs,
representing half of the USVI's total job loss resulting from
the hurricanes.
As a result of the severity of damage from Irma and Maria,
and the subsequent disruption of the USVI tourism industry,
experts believe that a full economic recovery could take years.
Representatives of the USVI and the tourism industry argue that
a visa waiver program is necessary to bolster the USVI's
economic growth and increase the USVI's competitiveness against
other Caribbean countries as a tourism destination.
Drug trafficking is a serious concern for residents of the
territory. Puerto Rico and the U.S. Virgin Islands requested--
and received--a designation as a single High Intensity Drug
Trafficking Area (HIDTA) by the Office of National Drug Control
Policy in 1994. Since the designation, law enforcement entities
in Puerto Rico and the U.S. Virgin Islands have worked closely
with federal authorities to stop drug trafficking in the
territories.
H.R. 5460 is not intended to permit the admission or entry
of drug traffickers or members of cartels into the U.S. Virgin
Islands. Given this intent, H.R. 5460 includes protections to
prevent drug trafficking and to prevent the inclusion of
countries that may increase the risk of drug trafficking to the
U.S. Virgin Islands. For example, H.R. 5460 requires that an
adequate departure and arrival control system be in place
before the USVI Visa Waiver Program can be implemented.
A departure and arrival control system would allow DHS to
examine all individuals seeking to visit the U.S. Virgin
Islands at the port of entry. H.R. 5460 also prevents the
Secretary from authorizing any country for inclusion in the
program, if such inclusion would represent a threat to the
welfare, safety, or security of the United States or its
territories or commonwealths. The legislation also requires the
Secretary to suspend a country from the program if visitors
from that country pose a risk to law enforcement or security
interests.
In placing such restrictions on the program, H.R. 5460
strikes a careful balance, allowing the U.S. Virgin Islands to
grow its tourism economy while minimizing the risk of fraud and
abuse of our immigration system.
Hearings
For the purposes of clause 3(c)(6)(A) of House rule XIII,
the following hearings were used to develop H.R. 5460:
``The U.S. Immigration System: The Need for Bold Reforms,''
held on February 11, 2021, before the Subcommittee on
Immigration and Citizenship. The Subcommittee heard testimony
from:
Marielena Hincapie, Executive Director, National
Immigration Law Center;
Jennifer Hunt, Professor of Economics, Rutgers
University;
John Lettieri, President and CEO, Economic
Innovation Group; and
Peter Kirsanow, Partner, Benesch, Friedlander,
Coplan, & Aronoff LLP.
``Why Don't They Just Get in Line? Barriers to Legal
Immigration,'' held on April 28, 2021, before the Subcommittee
on Immigration and Citizenship. The Subcommittee heard
testimony from:
David J. Bier, Research Fellow, Cato Institute;
John C. Yang, President and Executive Director,
Asian Americans Advancing Justice | AAJC;
Pareen Mhatre, Iowa City, I.A.; and
Robert Law, Director of Regulatory Affairs and
Policy, Center for Immigration Studies.
The hearings explored the importance of immigration reform
to our nation's economy and the negative impact of barriers to
immigration on American communities and businesses.
Committee Consideration
On April 6, 2022, the Committee met in open session and
ordered the bill, H.R. 5460, favorably reported with an
amendment in the nature of a substitute, by a rollcall vote of
24 to 14, a quorum being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
following rollcall votes occurred during the Committee's
consideration of H.R. 5460:
1. An amendment by Mr. Biggs to prevent H.R. 5460 from
going into effect until the Secretary of Homeland Security
certifies that all aliens in the country unlawfully are
removed, detained, or enrolled in the Migrant Protection
Protocols, was defeated by a rollcall vote of 22 to 13. The
vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
2. An amendment by Mr. Biggs to prevent H.R. 5460 from
going into effect until the Secretary of Homeland Security
certifies that the Secretary has achieved and maintains
operational control over the entire international land and
maritime borders of the United States, was defeated by a
rollcall vote of 18 to 9. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
3. An amendment by Mr. Roy to prevent H.R. 5460 from going
into effect until Secretary Mayorkas ceases to serve as the
Secretary of Homeland Security, was defeated by a rollcall vote
of 21 to 12. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
4. An amendment by Mr. Bishop to prevent H.R. 5460 from
going into effect until there are policies in place to suspend
the right to introduce certain persons from countries where a
quarantinable communicable disease exists, was defeated by a
roll call vote of 23 to 14. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
5. The motion to report H.R. 5460, as amended, favorably
was agreed to by a rollcall vote of 24 to 14. The vote was as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of House Rule X, are incorporated in the descriptive portions
of this report.
Committee Estimate of Budgetary Effects
Pursuant to clause 3(d)(1) of House rule XIII, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(2) of House rule XIII and section
308(a) of the Congressional Budget Act of 1974, and pursuant to
clause (3)(c)(3) of House rule XIII and section 402 of the
Congressional Budget Act of 1974, the Committee sets forth,
with respect to the bill, H.R. 5460, the following analysis and
estimate prepared by the Director of the Congressional Budget
Office.
Congressional Budget Office,
U.S. Congress,
Washington, DC, June 22, 2022.
Hon. Jerrold Nadler,
Chairman, Committee on the Judiciary,
U.S. House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5460, the Virgin
Islands Visa Waiver Act of 2022.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Nathaniel
Frentz.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 5460 would allow the Department of Homeland Security
(DHS) to waive visa requirements for foreign visitors from
certain Caribbean countries who are seeking to enter the U.S.
Virgin Islands for a stay of up to 45 days. DHS would need to
consult with the Departments of the Interior and State and the
Governor of the U.S. Virgin Islands to determine whether it has
developed adequate arrival and departure control systems to
ensure the waiver would not threaten the security of the United
States. Countries deemed to threaten security or that increase
fraud or abuse of the nonimmigrant waiver system would be
excluded from the waiver program established in the bill.
CBO expects that enacting the bill would decrease revenues
because fewer people would require visas issued by the
Department of State. Although most visa fees are retained by
the Department and spent without further appropriation, some
fees are recorded as revenues and deposited into the Treasury.
The bill would direct DHS within one year of enactment to
establish an administrative processing fee to be collected from
foreign visitors seeking to enter the U.S. Virgin Islands under
the visa waiver program. The fee, which would be recorded as a
revenue would be set at a level to recoup processing costs and
offset reduced collections of the nonimmigrant visa fee or
electronic travel authorization fee that would otherwise be
collected from foreign visitors. CBO estimates that, on net,
those changes would result in an insignificant increase in
revenues in each year and over the 2022-2032 period.
As part of implementing the new fee, DHS would be required
to consult with other federal agencies. Using information from
DHS about the costs of promulgating similar rules, CBO
estimates that the agencies' costs to implement the
requirements would not be significant; spending would be
subject to the availability of appropriated funds.
The CBO staff contact for this estimate is Nathaniel
Frentz. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Director of Budget Analysis.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 5460 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House rule XIII, H.R. 5460 would allow DHS to create a visa
waiver program limited to the USVI, permitting visitors for
tourism, business, or medical purposes from certain countries
to enter only the USVI without seeking a visa from the
Department of State. To determine which countries to include in
the USVI Visa Waiver Program, H.R. 5460 authorizes the
Secretary to apply the same criteria currently used in the
Guam-CNMI Visa Waiver Program. H.R. 5460 also requires the
Secretary to consider countries in the Caribbean Community for
inclusion in the USVI Visa Waiver Program.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 5460
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clause 9(d),
9(e), or 9(f) of House rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title
Section 1 sets forth the short title of the bill as the
``Virgin Islands Visa Waiver Act of 2022.''
Sec. 2. Addition of Virgin Islands Visa waiver to Guam and Northern
Mariana Islands visa waiver
Section (2)(a) amends section 212(l) of the INA, adding
authority for the Secretary of Homeland Security to create a
Virgin Islands Visa Waiver Program. As with the Guam-CNMI
Waiver Program, the following conditions apply--
The Virgin Islands Visa Waiver Program can only be
put in effect after the Secretary of Homeland Security, in
consultation with the Secretaries of State and the Interior and
the Governor of the USVI determine that--
an adequate arrival and departure system has
been established on the territory; and
such waiver does not present a threat to the
welfare, safety, or security of the United States or its
territories or commonwealths.
In identifying countries that may be included for
the program, the Secretary may consider, in his sole
discretion, such factors as he sees fit, 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.
The Secretary may include bonding requirements for
nationals of some or all of those countries who may present an
increased risk of overstays or other potential problems.
The Secretary must continue to monitor the effect
of the waiver for each country on the list, including whether a
waiver for nationals of any country--
presents a threat to the welfare, safety, or
security of the United States; or
has resulted in such nationals remaining
unlawfully in the United States.
Section (2)(b) requires the Secretary to promulgate
regulations described in Section (2)(a) within one year of the
date of enactment of this act.
Section (2)(c) requires the Secretary to consider member
countries of the Caribbean Community for inclusion in the
Virgin Islands Visa Waiver Program but prohibits inclusion if
the Secretary determines that a country's inclusion on such
list would represent a threat to the welfare, safety, or
security of the United States, or increase fraud and abuse of
the nonimmigrant visa system.
Section (2)(d) makes technical and conforming changes to
the INA to reflect the creation of a new Virgin Islands Visa
Waiver Program.
Section (2)(e) requires the Secretary to establish a fee to
recover the full costs of processing visitors through the
Virgin Islands Visa Waiver Program.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE II--IMMIGRATION
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
general classes of aliens ineligible to receive visas and ineligible
for admission; waivers of inadmissibility
Sec. 212. (a) Classes of Aliens Ineligible for Visas or
Admission.--Except as otherwise provided in this Act, 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;
(ii) except as provided in
subparagraph (C), who seeks admission
as an immigrant, or who seeks
adjustment of status to the status of
an alien lawfully admitted for
permanent residence, and who has failed
to present documentation of having
received vaccination against vaccine-
preventable diseases, which shall
include at least the following
diseases: mumps, measles, rubella,
polio, tetanus and diphtheria toxoids,
pertussis, influenza type B and
hepatitis B, and any other vaccinations
against vaccine-preventable diseases
recommended by the Advisory Committee
for Immunization Practices,
(iii) who is determined (in
accordance with regulations prescribed
by the Secretary of Health and Human
Services in consultation with the
Attorney General)--
(I) to have a physical or
mental disorder and behavior
associated with the disorder
that may pose, or has posed, a
threat to the property, safety,
or welfare of the alien or
others, or
(II) to have had a physical
or mental disorder and a
history of behavior associated
with the disorder, which
behavior has posed a threat to
the property, safety, or
welfare of the alien or others
and which behavior is likely to
recur or to lead to other
harmful behavior, or
(iv) who is determined (in accordance
with regulations prescribed by the
Secretary of Health and Human Services)
to be a drug abuser or addict,
is inadmissibility.
(B) Waiver authorized.--For provision
authorizing waiver of certain clauses of
subparagraph (A), see subsection (g).
(C) Exception from immunization requirement
for adopted children 10 years of age or
younger.--Clause (ii) of subparagraph (A) shall
not apply to a child who--
(i) is 10 years of age or younger,
(ii) is described in subparagraph (F)
or (G) of section 101(b)(1); and
(iii) is seeking an immigrant visa as
an immediate relative under section
201(b),
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 102 of the
Controlled Substances Act (21
U.S.C. 802)),
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 102 of the Controlled
Substances Act (21 U.S.C. 802)), 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, entry, 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 101(h)),
(ii) for whom immunity from criminal
jurisdiction was exercised with respect
to that offense,
(iii) who as a consequence of the
offense and exercise of immunity has
departed from the United States, and
(iv) who has not subsequently
submitted fully to the jurisdiction of
the court in the United States having
jurisdiction with respect to that
offense,
is inadmissible.
(F) Waiver authorized.--For provision
authorizing waiver of certain subparagraphs of
this paragraph, see subsection (h).
(G) Foreign government officials who have
committed particularly severe violations of
religious freedom.--Any alien who, while
serving as a foreign government official, was
responsible for or directly carried out, at any
time, particularly severe violations of
religious freedom, as defined in section 3 of
the International Religious Freedom Act of 1998
(22 U.S.C. 6402), is inadmissible.
(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 103 of such Act, is
inadmissible.
(ii) Beneficiaries of trafficking.--
Except as provided in clause (iii), any
alien who the consular officer or the
Attorney General knows or has reason to
believe is the spouse, son, or daughter
of an alien inadmissible under clause
(i), has, within the previous 5 years,
obtained any financial or other benefit
from the illicit activity of that
alien, and knew or reasonably should
have known that the financial or other
benefit was the product of such illicit
activity, is inadmissible.
(iii) Exception for certain sons and
daughters.--Clause (ii) shall not apply
to a son or daughter who was a child at
the time he or she received the benefit
described in such clause.
(I) Money laundering.--Any alien--
(i) who a consular officer or the
Attorney General knows, or has reason
to believe, has engaged, is engaging,
or seeks to enter the United States to
engage, in an offense which is
described in section 1956 or 1957 of
title 18, United States Code (relating
to laundering of monetary instruments);
or
(ii) who a consular officer or the
Attorney General knows is, or has been,
a knowing aider, abettor, assister,
conspirator, or colluder with others in
an offense which is described in such
section;
is inadmissible.
(3) Security and related grounds.--
(A) In general.--Any alien who a consular
officer or the Attorney General knows, or has
reasonable ground to believe, seeks to enter
the United States to engage solely,
principally, or incidentally in--
(i) any activity (I) to violate any
law of the United States relating to
espionage or sabotage or (II) to
violate or evade any law prohibiting
the export from the United States of
goods, technology, or sensitive
information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which
is the opposition to, or the control or
overthrow of, the Government of the
United States by force, violence, or
other unlawful means,
is inadmissible.
(B) Terrorist activities.--
(i) In general.--Any alien who--
(I) has engaged in a
terrorist activity;
(II) a consular officer, 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;
(IV) is a representative (as
defined in clause (v)) of--
(aa) a terrorist
organization (as
defined in clause
(vi)); or
(bb) a political,
social, or other group
that endorses or
espouses terrorist
activity;
(V) is a member of a
terrorist organization
described in subclause (I) or
(II) of clause (vi);
(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, United States Code) 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 Act,
to be engaged in a terrorist activity.
(ii) Exception.--Subclause (IX) of
clause (i) does not apply to a spouse
or child--
(I) who did not know or
should not reasonably have
known of the activity causing
the alien to be found
inadmissible under this
section; or
(II) whom the consular
officer or Attorney General has
reasonable grounds to believe
has renounced the activity
causing the alien to be found
inadmissible under this
section.
(iii) Terrorist activity defined.--As
used in this Act, the term ``terrorist
activity'' means any activity which is
unlawful under the laws of the place
where it is committed (or which, if it
had been committed in the United
States, would be unlawful under the
laws of the United States or any State)
and which involves any of the
following:
(I) The highjacking or
sabotage of any conveyance
(including an aircraft, vessel,
or vehicle).
(II) The seizing or
detaining, and threatening to
kill, injure, or continue to
detain, another individual in
order to compel a third person
(including a governmental
organization) to do or abstain
from doing any act as an
explicit or implicit condition
for the release of the
individual seized or detained.
(III) A violent attack upon
an internationally protected
person (as defined in section
1116(b)(4) of title 18, United
States Code) or upon the
liberty of such a person.
(IV) An assassination.
(V) The use of any--
(a) biological agent,
chemical agent, or
nuclear weapon or
device, or
(b) explosive,
firearm, or other
weapon or dangerous
device (other than for
mere personal monetary
gain),
with intent to endanger,
directly or indirectly, the
safety of one or more
individuals or to cause
substantial damage to property.
(VI) A threat, attempt, or
conspiracy to do any of the
foregoing.
(iv) Engage in terrorist activity
defined.--As used in this Act, the term
``engage in terrorist activity'' means,
in an individual capacity or as a
member of an organization--
(I) to commit or to incite to
commit, under circumstances
indicating an intention to
cause death or serious bodily
injury, a terrorist activity;
(II) to prepare or plan a
terrorist activity;
(III) to gather information
on potential targets for
terrorist activity;
(IV) to solicit funds or
other things of value for--
(aa) a terrorist
activity;
(bb) a terrorist
organization described
in clause (vi)(I) or
(vi)(II); or
(cc) a terrorist
organization described
in clause (vi)(III),
unless the solicitor
can demonstrate by
clear and convincing
evidence that he did
not know, and should
not reasonably have
known, that the
organization was a
terrorist organization;
(V) to solicit any
individual--
(aa) to engage in
conduct otherwise
described in this
subsection;
(bb) for membership
in a terrorist
organization described
in clause (vi)(I) or
(vi)(II); or
(cc) for membership
in a terrorist
organization described
in clause (vi)(III)
unless the solicitor
can demonstrate by
clear and convincing
evidence that he did
not know, and should
not reasonably have
known, that the
organization was a
terrorist organization;
or
(VI) to commit an act that
the actor knows, or reasonably
should know, affords material
support, including a safe
house, transportation,
communications, funds, transfer
of funds or other material
financial benefit, false
documentation or
identification, weapons
(including chemical,
biological, or radiological
weapons), explosives, or
training--
(aa) for the
commission of a
terrorist activity;
(bb) to any
individual who the
actor knows, or
reasonably should know,
has committed or plans
to commit a terrorist
activity;
(cc) to a terrorist
organization described
in 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.
(v) Representative defined.--As used
in this paragraph, the term
``representative'' includes an officer,
official, or spokesman of an
organization, and any person who
directs, counsels, commands, or induces
an organization or its members to
engage in terrorist activity.
(vi) Terrorist organization
defined.--As used in this section, the
term ``terrorist organization'' means
an organization--
(I) designated under section
219;
(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.
(iii) Exception for past
membership.--Clause (i) shall not apply
to an alien because of membership or
affiliation if the alien establishes to
the satisfaction of the consular
officer when applying for a visa (or to
the satisfaction of the Attorney
General when applying for admission)
that--
(I) the membership or
affiliation terminated at
least--
(a) 2 years before
the date of such
application, or
(b) 5 years before
the date of such
application, in the
case of an alien whose
membership or
affiliation was with
the party controlling
the government of a
foreign state that is a
totalitarian
dictatorship as of such
date, and
(II) the alien is not a
threat to the security of the
United States.
(iv) Exception for close family
members.--The Attorney General may, in
the Attorney General's discretion,
waive the application of clause (i) in
the case of an immigrant who is the
parent, spouse, son, daughter, brother,
or sister of a citizen of the United
States or a spouse, son, or daughter of
an alien lawfully admitted for
permanent residence for humanitarian
purposes, to assure family unity, or
when it is otherwise in the public
interest if the immigrant is not a
threat to the security of the United
States.
(E) Participants in nazi persecution,
genocide, or the commission of any act of
torture or extrajudicial killing.--
(i) Participation in nazi
persecutions.--Any alien who, during
the period beginning on March 23, 1933,
and ending on May 8, 1945, under the
direction of, or in association with--
(I) the Nazi government of
Germany,
(II) any government in any
area occupied by the military
forces of the Nazi government
of Germany,
(III) any government
established with the assistance
or cooperation of the Nazi
government of Germany, or
(IV) any government which was
an ally of the Nazi government
of Germany,
ordered, incited, assisted, or
otherwise participated in the
persecution of any person because of
race, religion, national origin, or
political opinion is inadmissible.
(ii) Participation in genocide.--Any
alien who ordered, incited, assisted,
or otherwise participated in genocide,
as defined in section 1091(a) of title
18, United States Code, is inadmissible
(iii) Commission of acts of torture
or extrajudicial killings.--Any alien
who, outside the United States, has
committed, ordered, incited, assisted,
or otherwise participated in the
commission of--
(I) any act of torture, as
defined in section 2340 of
title 18, United States Code;
or
(II) under color of law of
any foreign nation, any
extrajudicial killing, as
defined in section 3(a) of the
Torture Victim Protection Act
of 1991 (28 U.S.C. 1350 note),
is inadmissible.
(F) Association with terrorist
organizations.--Any alien who the Secretary of
State, after consultation with the Attorney
General, or the Attorney General, after
consultation with the Secretary of State,
determines has been associated with a terrorist
organization and intends while in the United
States to engage solely, principally, or
incidentally in activities that could endanger
the welfare, safety, or security of the United
States is inadmissible.
(G) Recruitment or use of child soldiers.--
Any alien who has engaged in the recruitment or
use of child soldiers in violation of section
2442 of title 18, United States Code, is
inadmissible.
(4) Public charge.--
(A) In general.--Any alien who, in the
opinion of the consular officer at the time of
application for a visa, or in the opinion of
the Attorney General at the time of application
for admission or adjustment of status, is
likely at any time to become a public charge is
inadmissible.
(B) Factors to be taken into account.--(i) In
determining whether an alien is inadmissible
under this paragraph, the consular officer or
the Attorney General shall at a minimum
consider the alien's--
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial
status; and
(V) education and skills.
(ii) In addition to the factors under clause
(i), the consular officer or the Attorney
General may also consider any affidavit of
support under section 213A for purposes of
exclusion under this paragraph.
(C) Family-sponsored immigrants.--Any alien
who seeks admission or adjustment of status
under a visa number issued under section
201(b)(2) or 203(a) is inadmissible under this
paragraph unless--
(i) the alien has obtained--
(I) status as a spouse or a
child of a United States
citizen pursuant to clause
(ii), (iii), or (iv) of section
204(a)(1)(A), or
(II) classification pursuant
to clause (ii) or (iii) of
section 204(a)(1)(B); or
(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 213A(f)
or any alternative sponsor permitted
under paragraph (5)(B) of such section)
has executed an affidavit of support
described in section 213A 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
203(b) 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 213A
with respect to such alien.
(E) Special rule for qualified alien
victims.--Subparagraphs (A), (B), and (C) shall
not apply to an alien who--
(i) is a VAWA self-petitioner;
(ii) is an applicant for, or is
granted, nonimmigrant status under
section 101(a)(15)(U); or
(iii) is a qualified alien described
in section 431(c) of the Personal
Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C.
1641(c)).
(5) Labor certification and qualifications for
certain immigrants.--
(A) Labor certification.--
(i) In general.--Any alien who seeks
to enter the United States for the
purpose of performing skilled or
unskilled labor is inadmissible, unless
the Secretary of Labor has determined
and certified to the Secretary of State
and the Attorney General that--
(I) there are not sufficient
workers who are able, willing,
qualified (or equally qualified
in the case of an alien
described in clause (ii)) and
available at the time of
application for a visa and
admission to the United States
and at the place where the
alien is to perform such
skilled or unskilled labor, and
(II) the employment of such
alien will not adversely affect
the wages and working
conditions of workers in the
United States similarly
employed.
(ii) Certain aliens subject to
special rule.--For purposes of clause
(i)(I), an alien described in this
clause is an alien who--
(I) is a member of the
teaching profession, or
(II) has exceptional ability
in the sciences or the arts.
(iii) Professional athletes.--
(I) In general.--A
certification made under clause
(i) with respect to a
professional athlete shall
remain valid with respect to
the athlete after the athlete
changes employer, if the new
employer is a team in the same
sport as the team which
employed the athlete when the
athlete first applied for the
certification.
(II) Definition.--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 204(j) 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), any alien
who seeks to enter the United States for the
purpose of performing labor as a health-care
worker, other than a physician, is inadmissible
unless the alien presents to the consular
officer, or, in the case of an adjustment of
status, the Attorney General, a certificate
from the Commission on Graduates of Foreign
Nursing Schools, or a certificate from an
equivalent independent credentialing
organization approved by the Attorney General
in consultation with the Secretary of Health
and Human Services, verifying that--
(i) the alien's education, training,
license, and experience--
(I) meet all applicable
statutory and regulatory
requirements for entry into the
United States under the
classification specified in the
application;
(II) are comparable with that
required for an American
health-care worker of the same
type; and
(III) are authentic and, in
the case of a license,
unencumbered;
(ii) the alien has the level of
competence in oral and written English
considered by the Secretary of Health
and Human Services, in consultation
with the Secretary of Education, to be
appropriate for health care work of the
kind in which the alien will be
engaged, as shown by an appropriate
score on one or more nationally
recognized, commercially available,
standardized assessments of the
applicant's ability to speak and write;
and
(iii) if a majority of States
licensing the profession in which the
alien intends to work recognize a test
predicting the success on the
profession's licensing or certification
examination, the alien has passed such
a test or has passed such an
examination.
For purposes of clause (ii), determination of
the standardized tests required and of the
minimum scores that are appropriate are within
the sole discretion of the Secretary of Health
and Human Services and are not subject to
further administrative or judicial review.
(D) Application of grounds.--The grounds for
inadmissibility of aliens under subparagraphs
(A) and (B) shall apply to immigrants seeking
admission or adjustment of status under
paragraph (2) or (3) of section 203(b).
(6) Illegal entrants and immigration violators.--
(A) Aliens present without admission or
parole.--
(i) In general.--An alien present in
the United States without being
admitted or paroled, or who arrives in
the United States at any time or place
other than as designated by the
Attorney General, is inadmissible.
(ii) Exception for certain battered
women and children.--Clause (i) shall
not apply to an alien who demonstrates
that--
(I) the alien is a VAWA self-
petitioner;
(II)(a) the alien has been
battered or subjected to
extreme cruelty by a spouse or
parent, or by a member of the
spouse's or parent's family
residing in the same household
as the alien and the spouse or
parent consented or acquiesced
to such battery or cruelty, or
(b) the alien's child has been
battered or subjected to
extreme cruelty by a spouse or
parent of the alien (without
the active participation of the
alien in the battery or
cruelty) or by a member of the
spouse's or parent's family
residing in the same household
as the alien when the spouse or
parent consented to or
acquiesced in such battery or
cruelty and the alien did not
actively participate in such
battery or cruelty, and
(III) there was a substantial
connection between the battery
or cruelty described in
subclause (I) or (II) and the
alien's unlawful entry into the
United States.
(B) Failure to attend removal proceeding.--
Any alien who without reasonable cause fails or
refuses to attend or remain in attendance at a
proceeding to determine the alien's
inadmissibility or deportability and who seeks
admission to the United States within 5 years
of such alien's subsequent departure or removal
is inadmissible.
(C) Misrepresentation.--
(i) In general.--Any alien who, by
fraud or willfully misrepresenting a
material fact, seeks to procure (or has
sought to procure or has procured) a
visa, other documentation, or admission
into the United States or other benefit
provided under this Act is
inadmissible.
(ii) Falsely claiming citizenship.--
(I) In general.--Any alien
who falsely represents, or has
falsely represented, himself or
herself to be a citizen of the
United States for any purpose
or benefit under this Act
(including section 274A) 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).
(D) Stowaways.--Any alien who is a stowaway
is inadmissible.
(E) Smugglers.--
(i) In general.--Any alien who at any
time knowingly has encouraged, induced,
assisted, abetted, or aided any other
alien to enter or to try to enter the
United States in violation of law is
inadmissible.
(ii) Special rule in the case of
family reunification.--Clause (i) shall
not apply in the case of alien who is
an eligible immigrant (as defined in
section 301(b)(1) of the Immigration
Act of 1990), was physically present in
the United States on May 5, 1988, and
is seeking admission as an immediate
relative or under section 203(a)(2)
(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).
(F) Subject of civil penalty.--
(i) In general.--An alien who is the
subject of a final order for violation
of section 274C is inadmissible.
(ii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (d)(12).
(G) Student visa abusers.--An alien who
obtains the status of a nonimmigrant under
section 101(a)(15)(F)(i) and who violates a
term or condition of such status under section
214(l) is inadmissible until the alien has been
outside the United States for a continuous
period of 5 years after the date of the
violation.
(7) Documentation requirements.--
(A) Immigrants.--
(i) In general.--Except as otherwise
specifically provided in this Act, any
immigrant at the time of application
for admission--
(I) who is not in possession
of a valid unexpired immigrant
visa, reentry permit, border
crossing identification card,
or other valid entry document
required by this Act, 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 211(a), or
(II) whose visa has been
issued without compliance with
the provisions of section 203,
is inadmissible.
(ii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (k).
(B) Nonimmigrants.--
(i) In general.--Any nonimmigrant
who--
(I) is not in possession of a
passport valid for a minimum of
six months from the date of the
expiration of the initial
period of the alien's admission
or contemplated initial period
of stay authorizing the alien
to return to the country from
which the alien came or to
proceed to and enter some other
country during such period, or
(II) is not in possession of
a valid nonimmigrant visa or
border crossing identification
card at the time of application
for admission,
is inadmissible.
(ii) General waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (d)(4).
[(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).]
(iii) Special visa waiver programs.--
For a provision authorizing waiver of
clause (i) in the case of visitors to
Guam or the Commonwealth of the
Northern Mariana Islands, or the Virgin
Islands of the United States, see
subsection (l).
(iv) Visa waiver program.--For
authority to waive the requirement of
clause (i) under a program, see section
217.
(8) Ineligible for citizenship.--
(A) In general.--Any immigrant who is
permanently ineligible to citizenship is
inadmissible.
(B) Draft evaders.--Any person who has
departed from or who has remained outside the
United States to avoid or evade training or
service in the armed forces in time of war or a
period declared by the President to be a
national emergency is inadmissible, except that
this subparagraph shall not apply to an alien
who at the time of such departure was a
nonimmigrant and who is seeking to reenter the
United States as a nonimmigrant.
(9) Aliens previously removed.--
(A) Certain aliens previously removed.--
(i) Arriving aliens.--Any alien who
has been ordered removed under section
235(b)(1) or at the end of proceedings
under section 240 initiated upon the
alien's arrival in the United States
and who again seeks admission within 5
years of the date of such removal (or
within 20 years in the case of a second
or subsequent removal or at any time in
the case of an alien convicted of an
aggravated felony) is inadmissible.
(ii) Other aliens.--Any alien not
described in clause (i) who--
(I) has been ordered removed
under section 240 or any other
provision of law, or
(II) departed the United
States while an order of
removal was outstanding,
and who seeks admission within 10 years
of the date of such alien's departure
or removal (or within 20 years of such
date in the case of a second or
subsequent removal or at any time in
the case of an alien convicted of an
aggravated felony) is inadmissible.
(iii) Exception.--Clauses (i) and
(ii) shall not apply to an alien
seeking admission within a period if,
prior to the date of the alien's
reembarkation at a place outside the
United States or attempt to be admitted
from foreign contiguous territory, the
Attorney General has consented to the
alien's reapplying for admission.
(B) Aliens unlawfully present.--
(i) In general.--Any alien (other
than an alien lawfully admitted for
permanent residence) who--
(I) was unlawfully present in
the United States for a period
of more than 180 days but less
than 1 year, voluntarily
departed the United States
(whether or not pursuant to
section 244(e)) prior to the
commencement of proceedings
under section 235(b)(1) or
section 240, 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.
(iii) Exceptions.--
(I) Minors.--No period of
time in which an alien is under
18 years of age shall be taken
into account in determining the
period of unlawful presence in
the United States under clause
(i).
(II) Asylees.--No period of
time in which an alien has a
bona fide application for
asylum pending under section
208 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
103 of the Trafficking Victims Protection Act
of 2000 (22 U.S.C. 7102)) was at least one
central reason for the alien's unlawful
presence in the United States.
(iv) Tolling for good cause.--In the
case of an alien who--
(I) has been lawfully
admitted or paroled into the
United States,
(II) has filed a nonfrivolous
application for a change or
extension of status before the
date of expiration of the
period of stay authorized by
the Attorney General, and
(III) has not been employed
without authorization in the
United States before or during
the pendency of such
application,
the calculation of the period of time
specified in clause (i)(I) shall be
tolled during the pendency of such
application, but not to exceed 120
days.
(v) Waiver.--The Attorney General has
sole discretion to waive clause (i) in
the case of an immigrant who is the
spouse or son or daughter of a United
States citizen or of an alien lawfully
admitted for permanent residence, if it
is established to the satisfaction of
the Attorney General that the refusal
of admission to such immigrant alien
would result in extreme hardship to the
citizen or lawfully resident spouse or
parent of such alien. No court shall
have jurisdiction to review a decision
or action by the Attorney General
regarding a waiver under this clause.
(C) Aliens unlawfully present after previous
immigration violations.--
(i) In general.--Any alien who--
(I) has been unlawfully
present in the United States
for an aggregate period of more
than 1 year, or
(II) has been ordered removed
under section 235(b)(1),
section 240, 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.
(iii) Waiver.--The Secretary of
Homeland Security may waive the
application of clause (i) in the case
of an alien who is a VAWA self-
petitioner if there is a connection
between--
(I) the alien's battering or
subjection to extreme cruelty;
and
(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 232(c), and
(ii) whose protection or guardianship
is determined to be required by the
alien described in clause (i),
is inadmissible.
(C) International child abduction.--
(i) In general.--Except as provided
in clause (ii), any alien who, after
entry of an order by a court in the
United States granting custody to a
person of a United States citizen child
who detains or retains the child, or
withholds custody of the child, outside
the United States from the person
granted custody by that order, is
inadmissible until the child is
surrendered to the person granted
custody by that order.
(ii) Aliens supporting abductors and
relatives of abductors.--Any alien
who--
(I) is known by the Secretary
of State to have intentionally
assisted an alien in the
conduct described in clause
(i),
(II) is known by the
Secretary of State to be
intentionally providing
material support or safe haven
to an alien described in clause
(i), or
(III) is a spouse (other than
the spouse who is the parent of
the abducted child), child
(other than the abducted
child), parent, sibling, or
agent of an alien described in
clause (i), if such person has
been designated by the
Secretary of State at the
Secretary's sole and
unreviewable discretion, is
inadmissible until the child
described in clause (i) is
surrendered to the person
granted custody by the order
described in that clause, and
such person and child are
permitted to return to the
United States or such person's
place of residence.
(iii) Exceptions.--Clauses (i) and
(ii) shall not apply--
(I) to a government official
of the United States who is
acting within the scope of his
or her official duties;
(II) to a government official
of any foreign government if
the official has been
designated by the Secretary of
State at the Secretary's sole
and unreviewable discretion; or
(III) so long as the child is
located in a foreign state that
is a party to the Convention on
the Civil Aspects of
International Child Abduction,
done at The Hague on October
25, 1980.
(D) Unlawful voters.--
(i) In general.--Any alien who has
voted in violation of any Federal,
State, or local constitutional
provision, statute, ordinance, or
regulation is inadmissible.
(ii) Exception.--In the case of an
alien who voted in a Federal, State, or
local election (including an
initiative, recall, or referendum) in
violation of a lawful restriction of
voting to citizens, if each natural
parent of the alien (or, in the case of
an adopted alien, each adoptive parent
of the alien) is or was a citizen
(whether by birth or naturalization),
the alien permanently resided in the
United States prior to attaining the
age of 16, and the alien reasonably
believed at the time of such violation
that he or she was a citizen, the alien
shall not be considered to be
inadmissible under any provision of
this subsection based on such
violation.
(E) Former citizens who renounced citizenship
to avoid taxation.--Any alien who is a former
citizen of the United States who officially
renounces United States citizenship and who is
determined by the Attorney General to have
renounced United States citizenship for the
purpose of avoiding taxation by the United
States is inadmissible.
(b) Notices of Denials.--
(1) Subject to paragraphs (2) and (3), if an alien's
application for a visa, for admission to the United
States, or for adjustment of status is denied by an
immigration or consular officer because the officer
determines the alien to be inadmissible under
subsection (a), the officer shall provide the alien
with a timely written notice that--
(A) states the determination, and
(B) lists the specific provision or
provisions of law under which the alien is
excludable or ineligible for entry or
adjustment of status.
(2) The Secretary of State may waive the requirements
of paragraph (1) with respect to a particular alien or
any class or classes of inadmissible aliens.
(3) Paragraph (1) does not apply to any alien
inadmissible under paragraph (2) or (3) of subsection
(a).
(d)(1) The Attorney General shall determine whether a ground
for inadmissible exists with respect to a nonimmigrant
described in section 101(a)(15)(S). The Attorney General, in
the Attorney General's discretion, may waive the application of
subsection (a) (other than paragraph (3)(E)) in the case of a
nonimmigrant described in section 101(a)(15)(S), 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 101(a)(15)(S) 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
101(a)(15)(S).
(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) (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) (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) may be waived by the Attorney General and the
Secretary of State acting jointly (A) on the basis of
unforeseen emergency in individual cases, or (B) on the basis
of reciprocity with respect to nationals of foreign contiguous
territory or of adjacent islands and residents thereof having a
common nationality with such nationals, or (C) in the case of
aliens proceeding in immediate and continuous transit through
the United States under contracts authorized in section 238(c).
(5)(A) The Attorney General may, except as provided in
subparagraph (B) or in section 214(f), 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 207.
(7) The provisions of subsection (a) (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. Any alien described in this
paragraph, who is denied admission to the United States, shall
be immediately removed in the manner provided by section 241(c)
of this Act.
(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) 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 211(b) and in the case of an alien
seeking admission or adjustment of status as an immediate
relative or immigrant under section 203(a) (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)--
(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 211(b),
and
(B) in the case of an alien seeking admission or
adjustment of status under section 201(b)(2)(A) or
under section 203(a),
if no previous civil money penalty was imposed against the
alien under section 274C 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 101(a)(15)(T), except that
the ground for inadmissibility described in subsection (a)(4)
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 101(a)(15)(T), 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
discretion, may waive the application of--
(i) subsection (a)(1); and
(ii) any other provision of subsection (a) (excluding
paragraphs (3), (4), (10)(C), and (10(E)) if the
activities rendering the alien inadmissible under the
provision were caused by, or were incident to, the
victimization described in section 101(a)(15)(T)(i)(I).
(14) The Secretary of Homeland Security shall determine
whether a ground of inadmissibility exists with respect to a
nonimmigrant described in section 101(a)(15)(U). The Secretary
of Homeland Security, in the Attorney General's discretion, may
waive the application of subsection (a) (other than paragraph
(3)(E)) in the case of a nonimmigrant described in section
101(a)(15)(U), if the Secretary of Homeland Security considers
it to be in the public or national interest to do so.
(e) No person admitted under section 101(a)(15)(J) 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 101(a)(15)(J) 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 101(a)(15)(H) or section
101(a)(15)(L) 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 a 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 214(l): 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) 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) The Attorney General may waive the application of--
(1) subsection (a)(1)(A)(i) in the case of any alien
who--
(A) is the spouse or the unmarried son or
daughter, or the minor unmarried lawfully
adopted child, of a United States citizen, or
of an alien lawfully admitted for permanent
residence, or of an alien who has been issued
an immigrant visa,
(B) has a son or daughter who is a United
States citizen, or an alien lawfully admitted
for permanent residence, or an alien who has
been issued an immigrant visa; or
(C) is a VAWA self-petitioner,
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) in the case of any
alien--
(A) who receives vaccination against the
vaccine-preventable disease or diseases for
which the alien has failed to present
documentation of previous vaccination,
(B) for whom a civil surgeon, medical
officer, or panel physician (as those terms are
defined by section 34.2 of title 42 of the Code
of Federal Regulations) certifies, according to
such regulations as the Secretary of Health and
Human Services may prescribe, that such
vaccination would not be medically appropriate,
or
(C) under such circumstances as the Attorney
General provides by regulation, with respect to
whom the requirement of such a vaccination
would be contrary to the alien's religious
beliefs or moral convictions; or
(3) subsection (a)(1)(A)(iii) 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) The Attorney General may, in his discretion, waive the
application of subparagraphs (A)(i)(I), (B), (D), and (E) of
subsection (a)(2) and subparagraph (A)(i)(II) of such
subsection insofar as it relates to a single offense of simple
possession of 30 grams or less of marijuana if--
(1)(A) in the case of any immigrant it is established
to the satisfaction of the Attorney General that--
(i) the alien is inadmissible only under
subparagraph (D)(i) or (D)(ii) of such
subsection or the activities for which the
alien is inadmissible occurred more than 15
years before the date of the alien's
application for a visa, admission, or
adjustment of status,
(ii) the admission to the United States of
such alien would not be contrary to the
national welfare, safety, or security of the
United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse,
parent, son, or daughter of a citizen of the United
States or an alien lawfully admitted for permanent
residence if it is established to the satisfaction of
the Attorney General that the alien's denial of
admission would result in extreme hardship to the
United States citizen or lawfully resident spouse,
parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and
pursuant to such terms, conditions and procedures as he
may by regulations prescribe, has consented to the
alien's applying or reapplying for a visa, for
admission to the United States, or adjustment of
status.
No waiver shall be provided under this subsection in the case
of an alien who has been convicted of (or who has admitted
committing acts that constitute) murder or criminal acts
involving torture, or an attempt or conspiracy to commit murder
or a criminal act involving torture. No waiver shall be granted
under this subsection in the case of an alien who has
previously been admitted to the United States as an alien
lawfully admitted for permanent residence if either since the
date of such admission the alien has been convicted of an
aggravated felony or the alien has not lawfully resided
continuously in the United States for a period of not less than
7 years immediately preceding the date of initiation of
proceedings to remove the alien from the United States. No
court shall have jurisdiction to review a decision of the
Attorney General to grant or deny a waiver under this
subsection.
(i)(1) The Attorney General may, in the discretion of the
Attorney General, waive the application of clause (i) of
subsection (a)(6)(C) 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.
(2) No court shall have jurisdiction to review a decision or
action of the Attorney General regarding a waiver under
paragraph (1).
(j)(1) The additional requirements referred to in section
101(a)(15)(J) for an alien who is coming to the United States
under a program under which he will receive graduate medical
education or training are as follows:
(A) A school of medicine or of one of the other
health professions, which is accredited by a body or
bodies approved for the purpose by the Secretary of
Education, has agreed in writing to provide the
graduate medical education or training under the
program for which the alien is coming to the United
States or to assume responsibility for arranging for
the provision thereof by an appropriate public or
nonprofit private institution or agency, except that,
in the case of such an agreement by a school of
medicine, any one or more of its affiliated hospitals
which are to participate in the provision of the
graduate medical education or training must join in the
agreement.
(B) Before making such agreement, the accredited
school has been satisfied that the alien (i) is a
graduate of a school of medicine which is accredited by
a body or bodies approved for the purpose by the
Secretary of Education (regardless of whether such
school of medicine is in the United States); or (ii)(I)
has passed parts I and II of the National Board of
Medical Examiners Examination (or an equivalent
examination as determined by the Secretary of Health
and Human Services), (II) has competency in oral and
written English, (III) will be able to adapt to the
educational and cultural environment in which he will
be receiving his education or training, and (IV) has
adequate prior education and training to participate
satisfactorily in the program for which he is coming to
the United States. For the purposes of this
subparagraph, an alien who is a graduate of a medical
school shall be considered to have passed parts I and
II of the National Board of Medical Examiners
examination if the alien was fully and permanently
licensed to practice medicine in a State on January 9,
1978, and was practicing medicine in a State on that
date.
(C) The alien has made a commitment to return to the
country of his nationality or last residence upon
completion of the education or training for which he is
coming to the United States, and the government of the
country of his nationality or last residence has
provided a written assurance, satisfactory to the
Secretary of Health and Human Services, that there is a
need in that country for persons with the skills the
alien will acquire in such education or training.
(D) The duration of the alien's participation in the
program of graduate medical education or training for
which the alien is coming to the United States is
limited to the time typically required to complete such
program, as determined by the Director of the United
States Information Agency at the time of the alien's
admission into the United States, based on criteria
which are established in coordination with the
Secretary of Health and Human Services and which take
into consideration the published requirements of the
medical specialty board which administers such
education or training program; except that--
(i) such duration is further limited to seven
years unless the alien has demonstrated to the
satisfaction of the Director that the country
to which the alien will return at the end of
such specialty education or training has an
exceptional need for an individual trained in
such specialty, and
(ii) the alien may, once and not later than
two years after the date the alien is admitted
to the United States as an exchange visitor or
acquires exchange visitor status, change the
alien's designated program of graduate medical
education or training if the Director approves
the change and if a commitment and written
assurance with respect to the alien's new
program have been provided in accordance with
subparagraph (C).
(E) The alien furnishes the Attorney General each
year with an affidavit (in such form as the Attorney
General shall prescribe) that attests that the alien
(i) is in good standing in the program of graduate
medical education or training in which the alien is
participating, and (ii) will return to the country of
his nationality or last residence upon completion of
the education or training for which he came to the
United States.
(2) An alien who is a graduate of a medical school and who is
coming to the United States to perform services as a member of
the medical profession may not be admitted as a nonimmigrant
under section 101(a)(15)(H)(i)(b) unless--
(A) the alien is coming pursuant to an invitation
from a public or nonprofit private educational or
research institution or agency in the United States to
teach or conduct research, or both, at or for such
institution or agency, or
(B)(i) the alien has passed the Federation licensing
examination (administered by the Federation of State
Medical Boards of the United States) or an equivalent
examination as determined by the Secretary of Health
and Human Services, and
(ii)(I) has competency in oral and written English or
(II) is a graduate of a school of medicine which is
accredited by a body or bodies approved for the purpose
by the Secretary of Education (regardless of whether
such school of medicine is in the United States).
(3) The Director of the United States Information Agency
annually shall transmit to the Congress a report on aliens who
have submitted affidavits described in paragraph (1)(E), and
shall include in such report the name and address of each such
alien, the medical education or training program in which such
alien is participating, and the status of such alien in that
program.
(k) Any alien, inadmissible from the United States under
paragraph (5)(A) or (7)(A)(i) of subsection (a), 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--
[(A) an adequate arrival and departure
control system has been developed in Guam and
the Commonwealth of the Northern Mariana
Islands; and
[(B) such a waiver does not represent a
threat to the welfare, safety, or security of
the United States or its territories and
commonwealths.
[(2) Alien waiver of rights.--An alien may not be
provided a waiver under this subsection unless the
alien has waived any right--
[(A) to review or appeal under this Act an
immigration officer's determination as to the
admissibility of the alien at the port of entry
into Guam or the Commonwealth of the Northern
Mariana Islands; or
[(B) to contest, other than on the basis of
an application for withholding of removal under
section 241(b)(3) of this Act or under the
Convention Against Torture, or an application
for asylum if permitted under section 208, any
action for removal of the alien.
[(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 the date of
enactment of the Consolidated Natural Resources Act of
2008. The promulgation of such regulations shall be
considered a foreign affairs function for purposes of
section 553(a) of title 5, United States Code. 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 the date of enactment
of the Consolidated Natural Resources Act of
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
[(B) any bonding requirements for nationals
of some or all of those countries who may
present an increased risk of overstays or other
potential problems, if different from such
requirements otherwise provided by law for
nonimmigrant visitors.
[(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.]
(l) Guam and Northern Mariana Islands Visa Waiver Program;
Virgin 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, or
the Virgin Islands of the United States, 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, and the Governor of
Guam and the Governor of the Commonwealth of the
Northern Mariana Islands, or the Governor of the Virgin
Islands of the United States, as the case may be,
determines that--
(A) an adequate arrival and departure control
system has been developed in Guam and the
Commonwealth of the Northern Mariana Islands,
or the Virgin Islands of the United States; and
(B) such a waiver does not represent a threat
to the welfare, safety, or security of the
United States or its territories and
commonwealths.
(2) Alien waiver of rights.--An alien may not be
provided a waiver under this subsection unless the
alien has waived any right--
(A) to review or appeal under this Act an
immigration officer's determination as to the
admissibility of the alien at the port of entry
into Guam or the Commonwealth of the Northern
Mariana Islands, or the Virgin Islands of the
United States; or
(B) to contest, other than on the basis of an
application for withholding of removal under
section 241(b)(3) of this Act or under the
Convention Against Torture, or an application
for asylum if permitted under section 208 of
this Act, any action for removal of the alien.
(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. The promulgation of such regulations shall be
considered a foreign affairs function for purposes of
section 553(a) of title 5, United States Code. At a
minimum, such regulations should include, but not
necessarily be limited to--
(A) a listing of all countries whose
nationals may obtain the waivers provided by
this subsection; and
(B) any bonding requirements for nationals of
some or all of those countries who may present
an increased risk of overstays or other
potential problems, if different from such
requirements otherwise provided by law for
nonimmigrant visitors.
(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, and the Virgin Islands of the United States,
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, or
the Virgin Islands of the United States, 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 Virgin Islands
of the United States, 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, or the Virgin 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, or the Governor of the Virgin Islands
of the United States, 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)(1) The qualifications referred to in section
101(a)(15)(H)(i)(c), 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
101(a)(15)(H)(i)(c), with respect to a facility for which an
alien will perform services, is an attestation as to the
following:
(i) The facility meets all the requirements of
paragraph (6).
(ii) The employment of the alien will not adversely
affect the wages and working conditions of registered
nurses similarly employed.
(iii) The alien employed by the facility will be paid
the wage rate for registered nurses similarly employed
by the facility.
(iv) The facility has taken and is taking timely and
significant steps designed to recruit and retain
sufficient registered nurses who are United States
citizens or immigrants who are authorized to perform
nursing services, in order to remove as quickly as
reasonably possible the dependence of the facility on
nonimmigrant registered nurses.
(v) There is not a strike or lockout in the course of
a labor dispute, the facility did not lay off and will
not lay off a registered nurse employed by the facility
within the period beginning 90 days before and ending
90 days after the date of filing of any visa petition,
and the employment of such an alien is not intended or
designed to influence an election for a bargaining
representative for registered nurses of the facility.
(vi) At the time of the filing of the petition for
registered nurses under section 101(a)(15)(H)(i)(c),
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 101(a)(15)(H)(i)(c)
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 101(a)(15)(H)(i)(c)--
(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 the date of the enactment of the
Nursing Relief for Disadvantaged Areas Act of 1999. A
copy of the attestation shall be provided, within 30
days of the date of filing, to registered nurses
employed at the facility on the date of filing.
(B) For purposes of subparagraph (A)(iv), each of the
following shall be considered a significant step reasonably
designed to recruit and retain registered nurses:
(i) Operating a training program for registered
nurses at the facility or financing (or providing
participation in) a training program for registered
nurses elsewhere.
(ii) Providing career development programs and other
methods of facilitating health care workers to become
registered nurses.
(iii) Paying registered nurses wages at a rate higher
than currently being paid to registered nurses
similarly employed in the geographic area.
(iv) Providing reasonable opportunities for
meaningful salary advancement by registered nurses.
The steps described in this subparagraph shall not be
considered to be an exclusive list of the significant steps
that may be taken to meet the conditions of subparagraph
(A)(iv). Nothing in this subparagraph shall require a facility
to take more than one step if the facility can demonstrate that
taking a second step is not reasonable.
(C) Subject to subparagraph (E), an attestation under
subparagraph (A)--
(i) shall expire on the date that is the later of--
(I) the end of the one-year period beginning
on the date of its filing with the Secretary of
Labor; or
(II) the end of the period of admission under
section 101(a)(15)(H)(i)(c) of the last alien
with respect to whose admission it was applied
(in accordance with clause (ii)); and
(ii) shall apply to petitions filed during the one-
year period beginning on the date of its filing with
the Secretary of Labor if the facility states in each
such petition that it continues to comply with the
conditions in the attestation.
(D) A facility may meet the requirements under this paragraph
with respect to more than one registered nurse in a single
petition.
(E)(i) The Secretary of Labor shall compile and make
available for public examination in a timely manner in
Washington, D.C., a list identifying facilities which have
filed petitions for nonimmigrants under section
101(a)(15)(H)(i)(c) and, for each such facility, a copy of the
facility's attestation under subparagraph (A) (and accompanying
documentation) and each such petition filed by the facility.
(ii) The Secretary of Labor shall establish a process,
including reasonable time limits, for the receipt,
investigation, and disposition of complaints respecting a
facility's failure to meet conditions attested to or a
facility's misrepresentation of a material fact in an
attestation. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives,
associations deemed appropriate by the Secretary, and other
aggrieved parties as determined under regulations of the
Secretary). The Secretary shall conduct an investigation under
this clause if there is reasonable cause to believe that a
facility fails to meet conditions attested to. Subject to the
time limits established under this clause, this subparagraph
shall apply regardless of whether an attestation is expired or
unexpired at the time a complaint is filed.
(iii) Under such process, the Secretary shall provide, within
180 days after the date such a complaint is filed, for a
determination as to whether or not a basis exists to make a
finding described in clause (iv). If the Secretary determines
that such a basis exists, the Secretary shall provide for
notice of such determination to the interested parties and an
opportunity for a hearing on the complaint within 60 days of
the date of the determination.
(iv) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that a facility (for which an
attestation is made) has failed to meet a condition attested to
or that there was a misrepresentation of material fact in the
attestation, the Secretary shall notify the Attorney General of
such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties in
an amount not to exceed $1,000 per nurse per violation, with
the total penalty not to exceed $10,000 per violation) as the
Secretary determines to be appropriate. Upon receipt of such
notice, the Attorney General shall not approve petitions filed
with respect to a facility during a period of at least one year
for nurses to be employed by the facility.
(v) In addition to the sanctions provided for under clause
(iv), if the Secretary of Labor finds, after notice and an
opportunity for a hearing, that a facility has violated the
condition attested to under subparagraph (A)(iii) (relating to
payment of registered nurses at the prevailing wage rate), the
Secretary shall order the facility to provide for payment of
such amounts of back pay as may be required to comply with such
condition.
(F)(i) The Secretary of Labor shall impose on a facility
filing an attestation under subparagraph (A) a filing fee, in
an amount prescribed by the Secretary based on the costs of
carrying out the Secretary's duties under this subsection, but
not exceeding $250.
(ii) Fees collected under this subparagraph shall be
deposited in a fund established for this purpose in the
Treasury of the United States.
(iii) The collected fees in the fund shall be available to
the Secretary of Labor, to the extent and in such amounts as
may be provided in appropriations Acts, to cover the costs
described in clause (i), in addition to any other funds that
are available to the Secretary to cover such costs.
(3) The period of admission of an alien under section
101(a)(15)(H)(i)(c) shall be 3 years.
(4) The total number of nonimmigrant visas issued pursuant to
petitions granted under section 101(a)(15)(H)(i)(c) 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
101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing
services for the facility--
(A) shall provide the nonimmigrant a wage rate and
working conditions commensurate with those of nurses
similarly employed by the facility;
(B) shall require the nonimmigrant to work hours
commensurate with those of nurses similarly employed by
the facility; and
(C) shall not interfere with the right of the
nonimmigrant to join or organize a union.
(6) For purposes of this subsection and section
101(a)(15)(H)(i)(c), 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 332 of the Public Health Service Act (42 U.S.C.
254e)).
(B) Based on its settled cost report filed under
title XVIII of the Social Security Act for its cost
reporting period beginning during fiscal year 1994--
(i) the hospital has not less than 190
licensed acute care beds;
(ii) the number of the hospital's inpatient
days for such period which were made up of
patients who (for such days) were entitled to
benefits under part A of such title 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, 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)(1) No alien may be admitted or provided status as an H-1B
nonimmigrant in an occupational classification unless the
employer has filed with the Secretary of Labor an application
stating the following:
(A) The employer--
(i) is offering and will offer during the
period of authorized employment to aliens
admitted or provided status as an H-1B
nonimmigrant wages that are at least--
(I) the actual wage level paid by the
employer to all other individuals with
similar experience and qualifications
for the specific employment in
question, or
(II) the prevailing wage level for
the occupational classification in the
area of employment,
whichever is greater, based on the best
information available as of the time of filing
the application, and
(ii) will provide working conditions for such
a nonimmigrant that will not adversely affect
the working conditions of workers similarly
employed.
(B) There is not a strike or lockout in the course of
a labor dispute in the occupational classification at
the place of employment.
(C) The employer, at the time of filing the
application--
(i) has provided notice of the filing under
this paragraph to the bargaining representative
(if any) of the employer's employees in the
occupational classification and area for which
aliens are sought, or
(ii) if there is no such bargaining
representative, has provided notice of filing
in the occupational classification through such
methods as physical posting in conspicuous
locations at the place of employment or
electronic notification to employees in the
occupational classification for which H-1B
nonimmigrants are sought.
(D) The application shall contain a specification of
the number of workers sought, the occupational
classification in which the workers will be employed,
and wage rate and conditions under which they will be
employed.
(E)(i) In the case of an application described in
clause (ii), the employer did not displace and will not
displace a United States worker (as defined in
paragraph (4)) employed by the employer within the
period beginning 90 days before and ending 90 days
after the date of filing of any visa petition supported
by the application.
(ii) An application described in this clause is an
application filed on or after the date final
regulations are first promulgated to carry out this
subparagraph, and before by an H-1B-dependent employer
(as defined in paragraph (3)) or by an employer that
has been found, on or after the date of the enactment
of the American Competitiveness and Workforce
Improvement Act of 1998, under paragraph (2)(C) or (5)
to have committed a willful failure or
misrepresentation during the 5-year period preceding
the filing of the application. An application is not
described in this clause if the only H-1B nonimmigrants
sought in the application are exempt H-1B
nonimmigrants.
(F) In the case of an application described in
subparagraph (E)(ii), the employer will not place the
nonimmigrant with another employer (regardless of
whether or not such other employer is an H-1B-dependent
employer) where--
(i) the nonimmigrant performs duties in whole
or in part at one or more worksites owned,
operated, or controlled by such other employer;
and
(ii) there are indicia of an employment
relationship between the nonimmigrant and such
other employer;
unless the employer has inquired of the other employer
as to whether, and has no knowledge that, within the
period beginning 90 days before and ending 90 days
after the date of the placement of the nonimmigrant
with the other employer, the other employer has
displaced or intends to displace a United States worker
employed by the other employer.
(G)(i) In the case of an application described in
subparagraph (E)(ii), subject to clause (ii), the
employer, prior to filing the application--
(I) has taken good faith steps to recruit, in
the United States using procedures that meet
industry-wide standards and offering
compensation that is at least as great as that
required to be offered to H-1B nonimmigrants
under subparagraph (A), United States workers
for the job for which the nonimmigrant or
nonimmigrants is or are sought; and
(II) has offered the job to any United States
worker who applies and is equally or better
qualified for the job for which the
nonimmigrant or nonimmigrants is or are sought.
(ii) The conditions described in clause (i) shall not
apply to an application filed with respect to the
employment of an H-1B nonimmigrant who is described in
subparagraph (A), (B), or (C) of section 203(b)(1).
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 101(a)(15)(H)(i)(b) 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, United
States Code, within 60 days after the date of the
determination. If such a hearing is requested, the Secretary
shall make a finding concerning the matter by not later than 60
days after the date of the hearing. In the case of similar
complaints respecting the same applicant, the Secretary may
consolidate the hearings under this subparagraph on such
complaints.
(C)(i) If the Secretary finds, after notice and opportunity
for a hearing, a failure to meet a condition of paragraph
(1)(B), (1)(E), or (1)(F), a substantial failure to meet a
condition of paragraph (1)(C), (1)(D), or (1)(G)(i)(I), or a
misrepresentation of material fact in an application--
(I) the Secretary shall notify the Attorney General
of such finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $1,000 per
violation) as the Secretary determines to be
appropriate; and
(II) the Attorney General shall not approve petitions
filed with respect to that employer under section 204
or 214(c) during a period of at least 1 year for aliens
to be employed by the employer.
(ii) If the Secretary finds, after notice and opportunity for
a hearing, a willful failure to meet a condition of paragraph
(1), a willful misrepresentation of material fact in an
application, or a violation of clause (iv)--
(I) the Secretary shall notify the Attorney General
of such finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $5,000 per
violation) as the Secretary determines to be
appropriate; and
(II) the Attorney General shall not approve petitions
filed with respect to that employer under section 204
or 214(c) during a period of at least 2 years for
aliens to be employed by the employer.
(iii) If the Secretary finds, after notice and opportunity
for a hearing, a willful failure to meet a condition of
paragraph (1) or a willful misrepresentation of material fact
in an application, in the course of which failure or
misrepresentation the employer displaced a United States worker
employed by the employer within the period beginning 90 days
before and ending 90 days after the date of filing of any visa
petition supported by the application--
(I) the Secretary shall notify the Attorney General
of such finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $35,000 per
violation) as the Secretary determines to be
appropriate; and
(II) the Attorney General shall not approve petitions
filed with respect to that employer under section 204
or 214(c) during a period of at least 3 years for
aliens to be employed by the employer.
(iv) It is a violation of this clause for an employer who has
filed an application under this subsection to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any
other manner discriminate against an employee (which term, for
purposes of this clause, includes a former employee and an
applicant for employment) because the employee has disclosed
information to the employer, or to any other person, that the
employee reasonably believes evidences a violation of this
subsection, or any rule or regulation pertaining to this
subsection, or because the employee cooperates or seeks to
cooperate in an investigation or other proceeding concerning
the employer's compliance with the requirements of this
subsection or any rule or regulation pertaining to this
subsection.
(v) The Secretary of Labor and the Attorney General shall
devise a process under which an H-1B nonimmigrant who files a
complaint regarding a violation of clause (iv) and is otherwise
eligible to remain and work in the United States may be allowed
to seek other appropriate employment in the United States for a
period not to exceed the maximum period of stay authorized for
such nonimmigrant classification.
(vi)(I) It is a violation of this clause for an employer who
has filed an application under this subsection to require an H-
1B nonimmigrant to pay a penalty for ceasing employment with
the employer prior to a date agreed to by the nonimmigrant and
the employer. The Secretary shall determine whether a required
payment is a penalty (and not liquidated damages) pursuant to
relevant State law.
(II) It is a violation of this clause for an employer who has
filed an application under this subsection to require an alien
who is the subject of a petition filed under section 214(c)(1),
for which a fee is imposed under section 214(c)(9), 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
214(c)(1) 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
214(c)(1) 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 214(c)(1), with respect to the nonimmigrant, the
provisions of subclauses (I) and (II) shall apply to the
employer beginning 30 days after the date the nonimmigrant
first is admitted into the United States pursuant to the
petition, or 60 days after the date the nonimmigrant becomes
eligible to work for the employer (in the case of a
nonimmigrant who is present in the United States on the date of
the approval of the petition).
(IV) This clause does not apply to a failure to pay wages to
an H-1B nonimmigrant for nonproductive time due to non-work-
related factors, such as the voluntary request of the
nonimmigrant for an absence or circumstances rendering the
nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an
employer that is a school or other educational institution from
applying to an H-1B nonimmigrant an established salary practice
of the employer, under which the employer pays to H-1B
nonimmigrants and United States workers in the same
occupational classification an annual salary in disbursements
over fewer than 12 months, if--
(aa) the nonimmigrant agrees to the compressed annual
salary payments prior to the commencement of the
employment; and
(bb) the application of the salary practice to the
nonimmigrant does not otherwise cause the nonimmigrant
to violate any condition of the nonimmigrant's
authorization under this Act to remain in the United
States.
(VI) This clause shall not be construed as superseding clause
(viii).
(viii) It is a failure to meet a condition of paragraph
(1)(A) for an employer who has filed an application under this
subsection to fail to offer to an H-1B nonimmigrant, during the
nonimmigrant's period of authorized employment, benefits and
eligibility for benefits (including the opportunity to
participate in health, life, disability, and other insurance
plans; the opportunity to participate in retirement and savings
plans; and cash bonuses and noncash compensation, such as stock
options (whether or not based on performance)) on the same
basis, and in accordance with the same criteria, as the
employer offers to United States workers.
(D) If the Secretary finds, after notice and opportunity for
a hearing, that an employer has not paid wages at the wage
level specified under the application and required under
paragraph (1), the Secretary shall order the employer to
provide for payment of such amounts of back pay as may be
required to comply with the requirements of paragraph (1),
whether or not a penalty under subparagraph (C) has been
imposed.
(E) If an H-1B-dependent employer places a nonexempt H-1B
nonimmigrant with another employer as provided under paragraph
(1)(F) and the other employer has displaced or displaces a
United States worker employed by such other employer during the
period described in such paragraph, such displacement shall be
considered for purposes of this paragraph a failure, by the
placing employer, to meet a condition specified in an
application submitted under paragraph (1); except that the
Attorney General may impose a sanction described in subclause
(II) of subparagraph (C)(i), (C)(ii), or (C)(iii) only if the
Secretary of Labor found that such placing employer--
(i) knew or had reason to know of such displacement
at the time of the placement of the nonimmigrant with
the other employer; or
(ii) has been subject to a sanction under this
subparagraph based upon a previous placement of an H-1B
nonimmigrant with the same other employer.
(F) The Secretary may, on a case-by-case basis, subject an
employer to random investigations for a period of up to 5
years, beginning on the date (on or after the date of the
enactment of the American Competitiveness and Workforce
Improvement Act of 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
101(a)(15)(H)(i)(b) 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 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, United
States Code.
(iii) The Secretary of Labor shall establish a procedure for
any person desiring to provide to the Secretary of Labor
information described in clause (ii) that may be used, in whole
or in part, as the basis for the commencement of an
investigation described in such clause, to provide the
information in writing on a form developed and provided by the
Secretary of Labor and completed by or on behalf of the person.
The person may not be an officer or employee of the Department
of Labor, unless the information satisfies the requirement of
clause (iv)(II) (although an officer or employee of the
Department of Labor may complete the form on behalf of the
person).
(iv) Any investigation initiated or approved by the Secretary
of Labor under clause (ii) shall be based on information that
satisfies the requirements of such clause and that--
(I) originates from a source other than an officer or
employee of the Department of Labor; or
(II) was lawfully obtained by the Secretary of Labor
in the course of lawfully conducting another Department
of Labor investigation under this Act of 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 101(a)(15)(H)(i)(b) 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 (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 (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, United States Code, 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;
(II) the person or entity has been provided a period
of not less than 10 business days (beginning after the
date of the explanation) within which to correct the
failure; and
(III) the person or entity has not corrected the
failure voluntarily within such period.
(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.
(iv) Clauses (i) and (iii) shall not apply to a
person or entity that has engaged in or is engaging in
a pattern or practice of willful violations of this
subsection.
(I) Nothing in this subsection shall be construed as
superseding or preempting any other enforcement-related
authority under this Act (such as the authorities under section
274B), or any other Act.
(3)(A) For purposes of this subsection, the term ``H-1B-
dependent employer'' means an employer that--
(i)(I) has 25 or fewer full-time equivalent employees
who are employed in the United States; and (II) employs
more than 7 H-1B nonimmigrants;
(ii)(I) has at least 26 but not more than 50 full-
time equivalent employees who are employed in the
United States; and (II) employs more than 12 H-1B
nonimmigrants; or
(iii)(I) has at least 51 full-time equivalent
employees who are employed in the United States; and
(II) employs H-1B nonimmigrants in a number that is
equal to at least 15 percent of the number of such
full-time equivalent employees.
(B) For purposes of this subsection--
(i) the term ``exempt H-1B nonimmigrant'' means an H-
1B nonimmigrant who--
(I) receives wages (including cash bonuses
and similar compensation) at an annual rate
equal to at least $60,000; or
(II) has attained a master's or higher degree
(or its equivalent) in a specialty related to
the intended employment; and
(ii) the term nonexempt H-1B nonimmigrant means an H-
1B nonimmigrant who is not an exempt H-1B nonimmigrant.
(C) For purposes of subparagraph (A)--
(i) in computing the number of full-time equivalent
employees and the number of H-1B nonimmigrants, exempt
H-1B nonimmigrants shall not be taken into account
during the longer of--
(I) the 6-month period beginning on the date
of the enactment of the American
Competitiveness and Workforce Improvement Act
of 1998; or
(II) the period beginning on the date of the
enactment of the American Competitiveness and
Workforce Improvement Act of 1998 and ending on
the date final regulations are issued to carry
out this paragraph; and
(ii) any group treated as a single employer under
subsection (b), (c), (m), or (o) of section 414 of the
Internal Revenue Code of 1986 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 101(a)(15)(H)(i)(b).
(D)(i) The term ``lays off'', with respect to a
worker--
(I) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract (other than a temporary employment
contract entered into in order to evade a
condition described in subparagraph (E) or (F)
of paragraph (1)); but
(II) does not include any situation in which
the worker is offered, as an alternative to
such loss of employment, a similar employment
opportunity with the same employer (or, in the
case of a placement of a worker with another
employer under paragraph (1)(F), with either
employer described in such paragraph) at
equivalent or higher compensation and benefits
than the position from which the employee was
discharged, regardless of whether or not the
employee accepts the offer.
(ii) Nothing in this subparagraph is intended to
limit an employee's rights under a collective
bargaining agreement or other employment contract.
(E) The term ``United States worker'' means an
employee who--
(i) is a citizen or national of the United
States; or
(ii) is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee
under section 207, is granted asylum under
section 208, or is an immigrant otherwise
authorized, by this Act or by the Attorney
General, to be employed.
(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, United States Code.
(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, United States Code. 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
(ii) the Attorney General is authorized to not
approve petitions filed, with respect to that employer
and for aliens to be employed by the employer, under
section 204 or 214(c)--
(I) during a period of not more than 1 year;
or
(II) in the case of a willful failure or
willful misrepresentation, during a period of
not more than 2 years.
(F) The Attorney General shall not delegate, to any other
employee or official of the Department of Justice, any function
of the Attorney General under this paragraph, until 60 days
after the Attorney General has submitted a plan for such
delegation to the Committees on the Judiciary of the United
States House of Representatives and the Senate.
(o) An alien who has been physically present in the United
States shall not be eligible to receive an immigrant visa
within ninety days following departure therefrom unless--
(1) the alien was maintaining a lawful nonimmigrant
status at the time of such departure, or
(2) the alien is the spouse or unmarried child of an
individual who obtained temporary or permanent resident
status under section 210 or 245A of the Immigration and
Nationality Act or section 202 of the Immigration
Reform and Control Act of 1986 at any date, who--
(A) as of May 5, 1988, was the unmarried
child or spouse of the individual who obtained
temporary or permanent resident status under
section 210 or 245A of the Immigration and
Nationality Act or section 202 of the
Immigration Reform and Control Act of 1986;
(B) entered the United States before May 5,
1988, resided in the United States on May 5,
1988, and is not a lawful permanent resident;
and
(C) applied for benefits under section 301(a)
of the Immigration Act of 1990.
(p)(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) in the case of an employee of--
(A) an institution of higher education (as defined in
section 101(a) of the Higher Education Act of 1965), or
a related or affiliated nonprofit entity; or
(B) a nonprofit research organization or a
Governmental research organization,
the prevailing wage level shall only take into account
employees at such institutions and organizations in the area of
employment.
(2) With respect to a professional athlete (as defined in
subsection (a)(5)(A)(iii)(II)) 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)
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) Any alien admitted under section 101(a)(15)(B) 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) 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) Subsection (a)(5)(C) 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) by the Attorney General in consultation
with the Secretary of Health and Human Services) that--
(1) the alien has a valid and unrestricted license as
a nurse in a State where the alien intends to be
employed and such State verifies that the foreign
licenses of alien nurses are authentic and
unencumbered;
(2) the alien has passed the National Council
Licensure Examination (NCLEX);
(3) the alien is a graduate of a nursing program--
(A) in which the language of instruction was
English;
(B) located in a country--
(i) designated by such commission not
later than 30 days after the date of
the enactment of the Nursing Relief for
Disadvantaged Areas Act of 1999, based
on such commission's assessment that
the quality of nursing education in
that country, and the English language
proficiency of those who complete such
programs in that country, justify the
country's designation; or
(ii) designated on the basis of such
an assessment by unanimous agreement of
such commission and any equivalent
credentialing organizations which have
been approved under subsection
(a)(5)(C) for the certification of
nurses under this subsection; and
(C)(i) which was in operation on or before
the date of the enactment of the Nursing Relief
for Disadvantaged Areas Act of 1999; or
(ii) has been approved by unanimous agreement
of such commission and any equivalent
credentialing organizations which have been
approved under subsection (a)(5)(C) for the
certification of nurses under this subsection.
(s) In determining whether an alien described in subsection
(a)(4)(C)(i) is inadmissible under subsection (a)(4) or
ineligible to receive an immigrant visa or otherwise to adjust
to the status of permanent resident by reason of subsection
(a)(4), the consular officer or the Attorney General shall not
consider any benefits the alien may have received that were
authorized under section 501 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1641(c)).
(t)(1) No alien may be admitted or provided status as a
nonimmigrant under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) 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
101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) wages that are at least--
(I) the actual wage level paid by the
employer to all other individuals with
similar experience and qualifications
for the specific employment in
question; or
(II) the prevailing wage level for
the occupational classification in the
area of employment,
whichever is greater, based on the best
information available as of the time of filing
the attestation; and
(ii) will provide working conditions for such
a nonimmigrant that will not adversely affect
the working conditions of workers similarly
employed.
(B) There is not a strike or lockout in the course of
a labor dispute in the occupational classification at
the place of employment.
(C) The employer, at the time of filing the
attestation--
(i) has provided notice of the filing under
this paragraph to the bargaining representative
(if any) of the employer's employees in the
occupational classification and area for which
aliens are sought; or
(ii) if there is no such bargaining
representative, has provided notice of filing
in the occupational classification through such
methods as physical posting in conspicuous
locations at the place of employment or
electronic notification to employees in the
occupational classification for which
nonimmigrants under section
101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) are sought.
(D) A specification of the number of workers sought,
the occupational classification in which the workers
will be employed, and wage rate and conditions under
which they will be employed.
(2)(A) The employer shall make available for public
examination, within one working day after the date on which an
attestation under this subsection is filed, at the employer's
principal place of business or worksite, a copy of each such
attestation (and such accompanying documents as are necessary).
(B)(i) The Secretary of Labor shall compile, on a current
basis, a list (by employer and by occupational classification)
of the attestations filed under this subsection. Such list
shall include, with respect to each attestation, the wage rate,
number of aliens sought, period of intended employment, and
date of need.
(ii) The Secretary of Labor shall make such list available
for public examination in Washington, D.C.
(C) The Secretary of Labor shall review an attestation filed
under this subsection only for completeness and obvious
inaccuracies. Unless the Secretary of Labor finds that an
attestation is incomplete or obviously inaccurate, the
Secretary of Labor shall provide the certification described in
section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii)
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, United States Code,
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 204, 214(c),
101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section
101(a)(15)(E)(iii) 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 204, 214(c),
101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section
101(a)(15)(E)(iii) 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 204, 214(c),
101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section
101(a)(15)(E)(iii) 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 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) 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 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) 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
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) 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
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) 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
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) 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 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) 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 101(a)(15)(H)(i)(b1)
or section 101(a)(15)(E)(iii) an established salary practice of
the employer, under which the employer pays to nonimmigrants
under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) and United States workers in the same
occupational classification an annual salary in disbursements
over fewer than 12 months, if--
(aa) the nonimmigrant agrees to the compressed annual
salary payments prior to the commencement of the
employment; and
(bb) the application of the salary practice to the
nonimmigrant does not otherwise cause the nonimmigrant
to violate any condition of the nonimmigrant's
authorization under this Act to remain in the United
States.
(VI) This clause shall not be construed as superseding clause
(viii).
(viii) It is a failure to meet a condition of paragraph
(1)(A) for an employer who has filed an attestation under this
subsection to fail to offer to a nonimmigrant under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii), 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 Act (such as the authorities under section
274B), 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 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) 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
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) 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.
(ii) Nothing in this subparagraph is intended to
limit an employee's rights under a collective
bargaining agreement or other employment contract.
(D) The term ``United States worker'' means an
employee who--
(i) is a citizen or national of the United
States; or
(ii) is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee
under section 207 of this title, is granted
asylum under section 208, or is an immigrant
otherwise authorized, by this Act or by the
Secretary of Homeland Security, to be employed.
(t)(1) Except as provided in paragraph (2), no person
admitted under section 101(a)(15)(Q)(ii)(I), or acquiring such
status after admission, shall be eligible to apply for
nonimmigrant status, an immigrant visa, or permanent residence
under this Act 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--
(A) 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 an alien lawfully admitted for permanent
residence); or
(B) the admission of the alien is in the public
interest or the national interest of the United States.
* * * * * * *
admission of nonimmigrants
Sec. 214. (a)(1) The admission to the United States of any
alien as a nonimmigrant shall be for such time and under such
conditions as the Attorney General may by regulations
prescribe, including when he deems necessary the giving of a
bond with sufficient surety in such sum and containing such
conditions as the Attorney General shall prescribe, to insure
that at the expiration of such time or upon failure to maintain
the status under which he was admitted, or to maintain any
status subsequently acquired under section 248, such alien will
depart from the United States. No alien admitted to [Guam or
the Commonwealth of the Northern Mariana Islands] Guam or the
Commonwealth of the Northern Mariana Islands, or the Virgin
Islands of the United States without a visa pursuant to section
212(l) may be authorized to enter or stay in the United States
other than in [Guam or the Commonwealth of the Northern Mariana
Islands] Guam or the Commonwealth of the Northern Mariana
Islands, or the Virgin Islands of the United States or to
remain in [Guam or the Commonwealth of the Northern Mariana
Islands] Guam or the Commonwealth of the Northern Mariana
Islands, or the Virgin Islands of the United States for a
period exceeding 45 days from date of admission to [Guam or the
Commonwealth of the Northern Mariana Islands] Guam or the
Commonwealth of the Northern Mariana Islands, or the Virgin
Islands of the United States. No alien admitted to the United
States without a visa pursuant to section 217 may be authorized
to remain in the United States as a nonimmigrant visitor for a
period exceeding 90 days from the date of admission.
(2)(A) The period of authorized status as a nonimmigrant
described in section 101(a)(15)(O) shall be for such period as
the Attorney General may specify in order to provide for the
event (or events) for which the nonimmigrant is admitted.
(B) The period of authorized status as a nonimmigrant
described in section 101(a)(15)(P) shall be for such period as
the Attorney General may specify in order to provide for the
competition, event, or performance for which the nonimmigrant
is admitted. In the case of nonimmigrants admitted as
individual athletes under section 101(a)(15)(P), the period of
authorized status may be for an initial period (not to exceed 5
years) during which the nonimmigrant will perform as an athlete
and such period may be extended by the Attorney General for an
additional period of up to 5 years.
(b) Every alien (other than a nonimmigrant described in
subparagraph (L) or (V) of section 101(a)(15), and other than a
nonimmigrant described in any provision of section
101(a)(15)(H)(i) except subclause (b1) of such section) shall
be presumed to be an immigrant until he establishes to the
satisfaction of the consular officer, at the time of
application for a visa, and the immigration officers, at the
time of application for admission, that he is entitled to a
nonimmigrant status under section 101(a)(15). An alien who is
an officer or employee of any foreign government or of any
international organization entitled to enjoy privileges,
exemptions, and immunities under the International
Organizations Immunities Act, or an alien who is the attendant,
servant, employee, or member of the immediate family of any
such alien shall not be entitled to apply for or receive an
immigrant visa, or to enter the United States as an immigrant
unless he executes a written waiver in the same form and
substance as is prescribed by section 247(b).
(c)(1) The question of importing any alien as a nonimmigrant
under subparagraph (H), (L), (O), or (P)(i) of section
101(a)(15) (excluding nonimmigrants under section
101(a)(15)(H)(i)(b1)) in any specific case or specific cases
shall be determined by the Attorney General, after consultation
with appropriate agencies of the Government, upon petition of
the importing employer. Such petition shall be made and
approved before the visa is granted. The petition shall be in
such form and contain such information as the Attorney General
shall prescribe. The approval of such a petition shall not, of
itself, be construed as establishing that the alien is a
nonimmigrant. For purposes of this subsection with respect to
nonimmigrants described in section 101(a)(15)(H)(ii)(a), the
term ``appropriate agencies of Government'' means the
Department of Labor and includes the Department of Agriculture.
The provisions of section 218 shall apply to the question of
importing any alien as a nonimmigrant under section
101(a)(15)(H)(ii)(a).
(2)(A) The Attorney General shall provide for a procedure
under which an importing employer which meets requirements
established by the Attorney General may file a blanket petition
to import aliens as nonimmigrants described in section
101(a)(15)(L) instead of filing individual petitions under
paragraph (1) to import such aliens. Such procedure shall
permit the expedited processing of visas for admission of
aliens covered under such a petition.
(B) For purposes of section 101(a)(15)(L), an alien is
considered to be serving in a capacity involving specialized
knowledge with respect to a company if the alien has a special
knowledge of the company product and its application in
international markets or has an advanced level of knowledge of
processes and procedures of the company.
(C) The Attorney General shall provide a process for
reviewing and acting upon petitions under this subsection with
respect to nonimmigrants described in section 101(a)(15)(L)
within 30 days after the date a completed petition has been
filed.
(D) The period of authorized admission for--
(i) a nonimmigrant admitted to render services in a
managerial or executive capacity under section
101(a)(15)(L) shall not exceed 7 years, or
(ii) a nonimmigrant admitted to render services in a
capacity that involves specialized knowledge under
section 101(a)(15)(L) shall not exceed 5 years.
(E) In the case of an alien spouse admitted under section
101(a)(15)(L), who is accompanying or following to join a
principal alien admitted under such section, the Attorney
General shall authorize the alien spouse to engage in
employment in the United States and provide the spouse with an
``employment authorized'' endorsement or other appropriate work
permit.
(F) An alien who will serve in a capacity involving
specialized knowledge with respect to an employer for purposes
of section 101(a)(15)(L) and will be stationed primarily at the
worksite of an employer other than the petitioning employer or
its affiliate, subsidiary, or parent shall not be eligible for
classification under section 101(a)(15)(L) if--
(i) the alien will be controlled and supervised
principally by such unaffiliated employer; or
(ii) the placement of the alien at the worksite of
the unaffiliated employer is essentially an arrangement
to provide labor for hire for the unaffiliated
employer, rather than a placement in connection with
the provision of a product or service for which
specialized knowledge specific to the petitioning
employer is necessary.
(3) The Attorney General shall approve a petition--
(A) with respect to a nonimmigrant described in
section 101(a)(15)(O)(i) only after consultation in
accordance with paragraph (6) or, with respect to
aliens seeking entry for a motion picture or television
production, after consultation with the appropriate
union representing the alien's occupational peers and a
management organization in the area of the alien's
ability, or
(B) with respect to a nonimmigrant described in
section 101(a)(15)(O)(ii) after consultation in
accordance with paragraph (6) or, in the case of such
an alien seeking entry for a motion picture or
television production, after consultation with such a
labor organization and a management organization in the
area of the alien's ability.
In the case of an alien seeking entry for a motion picture or
television production, (i) any opinion under the previous
sentence shall only be advisory, (ii) any such opinion that
recommends denial must be in writing, (iii) in making the
decision the Attorney General shall consider the exigencies and
scheduling of the production, and (iv) the Attorney General
shall append to the decision any such opinion. The Attorney
General shall provide by regulation for the waiver of the
consultation requirement under subparagraph (A) in the case of
aliens who have been admitted as nonimmigrants under section
101(a)(15)(O)(i) because of extraordinary ability in the arts
and who seek readmission to perform similar services within 2
years after the date of a consultation under such subparagraph.
Not later than 5 days after the date such a waiver is provided,
the Attorney General shall forward a copy of the petition and
all supporting documentation to the national office of an
appropriate labor organization.
(4)(A) For purposes of section 101(a)(15)(P)(i)(a), an alien
is described in this subparagraph if the alien--
(i)(I) performs as an athlete, individually or as
part of a group or team, at an internationally
recognized level of performance;
(II) is a professional athlete, as defined in section
204(i)(2);
(III) performs as an athlete, or as a coach, as part
of a team or franchise that is located in the United
States and a member of a foreign league or association
of 15 or more amateur sports teams, if--
(aa) the foreign league or association is the
highest level of amateur performance of that
sport in the relevant foreign country;
(bb) participation in such league or
association renders players ineligible, whether
on a temporary or permanent basis, to earn a
scholarship in, or participate in, that sport
at a college or university in the United States
under the rules of the National Collegiate
Athletic Association; and
(cc) a significant number of the individuals
who play in such league or association are
drafted by a major sports league or a minor
league affiliate of such a sports league; or
(IV) is a professional athlete or amateur athlete who
performs individually or as part of a group in a
theatrical ice skating production; and
(ii) seeks to enter the United States temporarily and
solely for the purpose of performing--
(I) as such an athlete with respect to a
specific athletic competition; or
(II) in the case of an individual described
in clause (i)(IV), in a specific theatrical ice
skating production or tour.
(B)(i) For purposes of section 101(a)(15)(P)(i)(b), an alien
is described in this subparagraph if the alien--
(I) performs with or is an integral and essential
part of the performance of an entertainment group that
has (except as provided in clause (ii)) been recognized
internationally as being outstanding in the discipline
for a sustained and substantial period of time,
(II) in the case of a performer or entertainer,
except as provided in clause (iii), has had a sustained
and substantial relationship with that group
(ordinarily for at least one year) and provides
functions integral to the performance of the group, and
(III) seeks to enter the United States temporarily
and solely for the purpose of performing as such a
performer or entertainer or as an integral and
essential part of a performance.
(ii) In the case of an entertainment group that is recognized
nationally as being outstanding in its discipline for a
sustained and substantial period of time, the Attorney General
may, in consideration of special circumstances, waive the
international recognition requirement of clause (i)(I).
(iii)(I) The one-year relationship requirement of clause
(i)(II) shall not apply to 25 percent of the performers and
entertainers in a group.
(II) The Attorney General may waive such one-year
relationship requirement for an alien who because of illness or
unanticipated and exigent circumstances replaces an essential
member of the group and for an alien who augments the group by
performing a critical role.
(iv) The requirements of subclauses (I) and (II) of clause
(i) shall not apply to alien circus personnel who perform as
part of a circus or circus group or who constitute an integral
and essential part of the performance of such circus or circus
group, but only if such personnel are entering the United
States to join a circus that has been recognized nationally as
outstanding for a sustained and substantial period of time or
as part of such a circus.
(C) A person may petition the Attorney General for
classification of an alien as a nonimmigrant under section
101(a)(15)(P).
(D) The Attorney General shall approve petitions under this
subsection with respect to nonimmigrants described in clause
(i) or (iii) of section 101(a)(15)(P) only after consultation
in accordance with paragraph (6).
(E) The Attorney General shall approve petitions under this
subsection for nonimmigrants described in section
101(a)(15)(P)(ii) only after consultation with labor
organizations representing artists and entertainers in the
United States.
(F)(i) No nonimmigrant visa under section 101(a)(15)(P)(i)(a)
shall be issued to any alien who is a national of a country
that is a state sponsor of international terrorism unless the
Secretary of State determines, in consultation with the
Secretary of Homeland Security and the heads of other
appropriate United States agencies, that such alien does not
pose a threat to the safety, national security, or national
interest of the United States. In making a determination under
this subparagraph, the Secretary of State shall apply standards
developed by the Secretary of State, in consultation with the
Secretary of Homeland Security and the heads of other
appropriate United States agencies, that are applicable to the
nationals of such states.
(ii) In this subparagraph, the term ``state sponsor of
international terrorism'' means any country the government of
which has been determined by the Secretary of State under any
of the laws specified in clause (iii) to have repeatedly
provided support for acts of international terrorism.
(iii) The laws specified in this clause are the following:
(I) Section 6(j)(1)(A) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) (or
successor statute).
(II) Section 40(d) of the Arms Export Control Act (22
U.S.C. 2780(d)).
(III) Section 620A(a) of the Foreign Assistance Act
of 1961 (22 U.S.C. 2371(a)).
(G) The Secretary of Homeland Security shall permit a
petition under this subsection to seek classification of more
than 1 alien as a nonimmigrant under section
101(a)(15)(P)(i)(a).
(H) The Secretary of Homeland Security shall permit an
athlete, or the employer of an athlete, to seek admission to
the United States for such athlete under a provision of this
Act other than section 101(a)(15)(P)(i) if the athlete is
eligible under such other provision.
(5)(A) In the case of an alien who is provided nonimmigrant
status under section 101(a)(15)(H)(i)(b) or
101(a)(15)(H)(ii)(b) and who is dismissed from employment by
the employer before the end of the period of authorized
admission, the employer shall be liable for the reasonable
costs of return transportation of the alien abroad.
(B) In the case of an alien who is admitted to the United
States in nonimmigrant status under section 101(a)(15)(O) or
101(a)(15)(P) and whose employment terminates for reasons other
than voluntary resignation, the employer whose offer of
employment formed the basis of such nonimmigrant status and the
petitioner are jointly and severally liable for the reasonable
cost of return transportation of the alien abroad. The
petitioner shall provide assurance satisfactory to the Attorney
General that the reasonable cost of that transportation will be
provided.
(6)(A)(i) To meet the consultation requirement of paragraph
(3)(A) in the case of a petition for a nonimmigrant described
in section 101(a)(15)(O)(i) (other than with respect to aliens
seeking entry for a motion picture or television production),
the petitioner shall submit with the petition an advisory
opinion from a peer group (or other person or persons of its
choosing, which may include a labor organization) with
expertise in the specific field involved.
(ii) To meet the consultation requirement of paragraph (3)(B)
in the case of a petition for a nonimmigrant described in
section 101(a)(15)(O)(ii) (other than with respect to aliens
seeking entry for a motion picture or television production),
the petitioner shall submit with the petition an advisory
opinion from a labor organization with expertise in the skill
area involved.
(iii) To meet the consultation requirement of paragraph
(4)(D) in the case of a petition for a nonimmigrant described
in section 101(a)(15)(P)(i) or 101(a)(15)(P)(iii), the
petitioner shall submit with the petition an advisory opinion
from a labor organization with expertise in the specific field
of athletics or entertainment involved.
(B) To meet the consultation requirements of subparagraph
(A), unless the petitioner submits with the petition an
advisory opinion from an appropriate labor organization, the
Attorney General shall forward a copy of the petition and all
supporting documentation to the national office of an
appropriate labor organization within 5 days of the date of
receipt of the petition. If there is a collective bargaining
representative of an employer's employees in the occupational
classification for which the alien is being sought, that
representative shall be the appropriate labor organization.
(C) In those cases in which a petitioner described in
subparagraph (A) establishes that an appropriate peer group
(including a labor organization) does not exist, the Attorney
General shall adjudicate the petition without requiring an
advisory opinion.
(D) Any person or organization receiving a copy of a petition
described in subparagraph (A) and supporting documents shall
have no more than 15 days following the date of receipt of such
documents within which to submit a written advisory opinion or
comment or to provide a letter of no objection. Once the 15-day
period has expired and the petitioner has had an opportunity,
where appropriate, to supply rebuttal evidence, the Attorney
General shall adjudicate such petition in no more than 14 days.
The Attorney General may shorten any specified time period for
emergency reasons if no unreasonable burden would be thus
imposed on any participant in the process.
(E)(i) The Attorney General shall establish by regulation
expedited consultation procedures in the case of nonimmigrant
artists or entertainers described in section 101(a)(15)(O) or
101(a)(15)(P) to accommodate the exigencies and scheduling of a
given production or event.
(ii) The Attorney General shall establish by regulation
expedited consultation procedures in the case of nonimmigrant
athletes described in section 101(a)(15)(O)(i) or
101(a)(15)(P)(i) in the case of emergency circumstances
(including trades during a season).
(F) No consultation required under this subsection by the
Attorney General with a nongovernmental entity shall be
construed as permitting the Attorney General to delegate any
authority under this subsection to such an entity. The Attorney
General shall give such weight to advisory opinions provided
under this section as the Attorney General determines, in his
sole discretion, to be appropriate.
(7) If a petition is filed and denied under this subsection,
the Attorney General shall notify the petitioner of the
determination and the reasons for the denial and of the process
by which the petitioner may appeal the determination.
(8) The Attorney General shall submit annually to the
Committees on the Judiciary of the House of Representatives and
of the Senate a report describing, with respect to petitions
under each subcategory of subparagraphs (H), (O), (P), and (Q)
of section 101(a)(15) the following:
(A) The number of such petitions which have been
filed.
(B) The number of such petitions which have been
approved and the number of workers (by occupation)
included in such approved petitions.
(C) The number of such petitions which have been
denied and the number of workers (by occupation)
requested in such denied petitions.
(D) The number of such petitions which have been
withdrawn.
(E) The number of such petitions which are awaiting
final action.
(9)(A) The Attorney General shall impose a fee on an employer
(excluding any employer that is a primary or secondary
education institution, an institution of higher education, as
defined in section 101(a) of the Higher Education Act of 1965
(20 U.S.C. 1001(a), a nonprofit entity related to or affiliated
with any such institution, a nonprofit entity which engages in
established curriculum-related clinical training of students
registered at any such institution, a nonprofit research
organization, or a governmental research organization) filing
before a petition under paragraph (1)--
(i) initially to grant an alien nonimmigrant status
described in section 101(a)(15)(H)(i)(b);
(ii) to extend the stay of an alien having such
status (unless the employer previously has obtained an
extension for such alien); or
(iii) to obtain authorization for an alien having
such status to change employers.
(B) The amount of the fee shall be $1,500 for each such
petition except that the fee shall be half the amount for each
such petition by any employer with not more than 25 full-time
equivalent employees who are employed in the United States
(determined by including any affiliate or subsidiary of such
employer).
(C) Fees collected under this paragraph shall be deposited in
the Treasury in accordance with section 286(s).
(10) An amended H-1B petition shall not be required
where the petitioning employer is involved in a
corporate restructuring, including but not limited to a
merger, acquisition, or consolidation, where a new
corporate entity succeeds to the interests and
obligations of the original petitioning employer and
where the terms and conditions of employment remain the
same but for the identity of the petitioner.
(11)(A) Subject to subparagraph (B), the Secretary of
Homeland Security or the Secretary of State, as appropriate,
shall impose a fee on an employer who has filed an attestation
described in section 212(t)--
(i) in order that an alien may be initially granted
nonimmigrant status described in section
101(a)(15)(H)(i)(b1); or
(ii) in order to satisfy the requirement of the
second sentence of subsection (g)(8)(C) for an alien
having such status to obtain certain extensions of
stay.
(B) The amount of the fee shall be the same as the amount
imposed by the Secretary of Homeland Security under paragraph
(9), except that if such paragraph does not authorize such
Secretary to impose any fee, no fee shall be imposed under this
paragraph.
(C) Fees collected under this paragraph shall be deposited in
the Treasury in accordance with section 286(s).
(12)(A) In addition to any other fees authorized by law, the
Secretary of Homeland Security shall impose a fraud prevention
and detection fee on an employer filing a petition under
paragraph (1)--
(i) initially to grant an alien nonimmigrant status
described in subparagraph (H)(i)(b) or (L) of section
101(a)(15); or
(ii) to obtain authorization for an alien having such
status to change employers.
(B) In addition to any other fees authorized by law, the
Secretary of State shall impose a fraud prevention and
detection fee on an alien filing an application abroad for a
visa authorizing admission to the United States as a
nonimmigrant described in section 101(a)(15)(L), if the alien
is covered under a blanket petition described in paragraph
(2)(A).
(C) The amount of the fee imposed under subparagraph (A) or
(B) shall be $500.
(D) The fee imposed under subparagraph (A) or (B) shall only
apply to principal aliens and not to the spouses or children
who are accompanying or following to join such principal
aliens.
(E) Fees collected under this paragraph shall be deposited in
the Treasury in accordance with section 286(v).
(13)(A) In addition to any other fees authorized by law, the
Secretary of Homeland Security shall impose a fraud prevention
and detection fee on an employer filing a petition under
paragraph (1) for nonimmigrant workers described in section
101(a)(15)(H)(ii)(b).
(B) The amount of the fee imposed under subparagraph (A)
shall be $150.
(14)(A) If the Secretary of Homeland Security finds, after
notice and an opportunity for a hearing, a substantial failure
to meet any of the conditions of the petition to admit or
otherwise provide status to a nonimmigrant worker under section
101(a)(15)(H)(ii)(b) or a willful misrepresentation of a
material fact in such petition--
(i) the Secretary of Homeland Security may, in
addition to any other remedy authorized by law, impose
such administrative remedies (including civil monetary
penalties in an amount not to exceed $10,000 per
violation) as the Secretary of Homeland Security
determines to be appropriate; and
(ii) the Secretary of Homeland Security may deny
petitions filed with respect to that employer under
section 204 or paragraph (1) of this subsection during
a period of at least 1 year but not more than 5 years
for aliens to be employed by the employer.
(B) The Secretary of Homeland Security may delegate to the
Secretary of Labor, with the agreement of the Secretary of
Labor, any of the authority given to the Secretary of Homeland
Security under subparagraph (A)(i).
(C) In determining the level of penalties to be assessed
under subparagraph (A), the highest penalties shall be reserved
for willful failures to meet any of the conditions of the
petition that involve harm to United States workers.
(D) In this paragraph, the term ``substantial failure'' means
the willful failure to comply with the requirements of this
section that constitutes a significant deviation from the terms
and conditions of a petition.
(d)(1) A visa shall not be issued under the provisions of
section 101(a)(15)(K)(i) until the consular officer has
received a petition filed in the United States by the fiancee
or fiance of the applying alien and approved by the Secretary
of Homeland Security. The petition shall be in such form and
contain such information as the Secretary of Homeland Security
shall, by regulation, prescribe. Such information shall include
information on any criminal convictions of the petitioner for
any specified crime described in paragraph (3)(B) and
information on any permanent protection or restraining order
issued against the petitioner related to any specified crime
described in paragraph (3)(B)(i). It shall be approved only
after satisfactory evidence is submitted by the petitioner to
establish that the parties have previously met in person within
2 years before the date of filing the petition, have a bona
fide intention to marry, and are legally able and actually
willing to conclude a valid marriage in the United States
within a period of ninety days after the alien's arrival,
except that the Secretary of Homeland Security in his
discretion may waive the requirement that the parties have
previously met in person. In the event the marriage with the
petitioner does not occur within three months after the
admission of the said alien and minor children, they shall be
required to depart from the United States and upon failure to
do so shall be removed in accordance with sections 240 and 241.
(2)(A) Subject to subparagraphs (B) and (C), the Secretary of
Homeland Security may not approve a petition under paragraph
(1) unless the Secretary has verified that--
(i) the petitioner has not, previous to the pending
petition, petitioned under paragraph (1) with respect
to two or more applying aliens; and
(ii) if the petitioner has had such a petition
previously approved, 2 years have elapsed since the
filing of such previously approved petition.
(B) The Secretary of Homeland Security may, in the
Secretary's discretion, waive the limitations in subparagraph
(A) if justification exists for such a waiver. Except in
extraordinary circumstances and subject to subparagraph (C),
such a waiver shall not be granted if the petitioner has a
record of violent criminal offenses against a person or
persons.
(C)(i) The Secretary of Homeland Security is not limited by
the criminal court record and shall grant a waiver of the
condition described in the second sentence of subparagraph (B)
in the case of a petitioner described in clause (ii).
(ii) A petitioner described in this clause is a petitioner
who has been battered or subjected to extreme cruelty and who
is or was not the primary perpetrator of violence in the
relationship upon a determination that--
(I) the petitioner was acting in self-defense;
(II) the petitioner was found to have violated a
protection order intended to protect the petitioner; or
(III) the petitioner committed, was arrested for, was
convicted of, or pled guilty to committing a crime that
did not result in serious bodily injury and where there
was a connection between the crime and the petitioner's
having been battered or subjected to extreme cruelty.
(iii) In acting on applications under this subparagraph, the
Secretary of Homeland Security shall consider any credible
evidence relevant to the application. The determination of what
evidence is credible and the weight to be given that evidence
shall be within the sole discretion of the Secretary.
(3) In this subsection:
(A) The terms ``domestic violence'', ``sexual
assault'', ``child abuse and neglect'', ``dating
violence'', ``elder abuse'', and ``stalking'' have the
meaning given such terms in section 3 of the Violence
Against Women and Department of Justice Reauthorization
Act of 2005.
(B) The term ``specified crime'' means the following:
(i) Domestic violence, sexual assault, child
abuse and neglect, dating violence, elder
abuse, stalking, or an attempt to commit any
such crime.
(ii) Homicide, murder, manslaughter, rape,
abusive sexual contact, sexual exploitation,
incest, torture, trafficking, peonage, holding
hostage, involuntary servitude, slave trade,
kidnapping, abduction, unlawful criminal
restraint, false imprisonment, or an attempt to
commit any of the crimes described in this
clause.
(iii) At least three convictions for crimes
relating to a controlled substance or alcohol
not arising from a single act.
(e)
(1) An alien who is a citizen of Canada or Mexico, and the
spouse and children of any such alien if accompanying or
following to join such alien, who seeks to enter the United
States under and pursuant to the provisions of Section D of
Annex 16-A of the USMCA (as defined in section 3 of the United
States-Mexico-Canada Agreement Implementation Act) to engage in
business activities at a professional level as provided for in
such Annex, may be admitted for such purpose under regulations
of the Attorney General promulgated after consultation with the
Secretaries of State and Labor. For purposes of this Act,
including the issuance of entry documents and the application
of subsection (b), such alien shall be treated as if seeking
classification, or classifiable, as a nonimmigrant under
section 101(a)(15). For purposes of this paragraph, the term
``citizen of Mexico'' means ``citizen'' as defined in article
16.1 of the USMCA.
(2) In the case of an alien spouse admitted under section
101(a)(15)(E), who is accompanying or following to join a
principal alien admitted under such section, the Attorney
General shall authorize the alien spouse to engage in
employment in the United States and provide the spouse with an
``employment authorized'' endorsement or other appropriate work
permit.
(f)(1) Except as provided in paragraph (3), no alien shall be
entitled to nonimmigrant status described in section
101(a)(15)(D) if the alien intends to land for the purpose of
performing service on board a vessel of the United States (as
defined in section 2101(46) of title 46, United States Code) or
on an aircraft of an air carrier (as defined in section
40102(a)(2) of title 49, United States Code) during a labor
dispute where there is a strike or lockout in the bargaining
unit of the employer in which the alien intends to perform such
service.
(2) An alien described in paragraph (1)--
(A) may not be paroled into the United States
pursuant to section 212(d)(5) unless the Attorney
General determines that the parole of such alien is
necessary to protect the national security of the
United States; and
(B) shall be considered not to be a bona fide crewman
for purposes of section 252(b).
(3) Paragraph (1) shall not apply to an alien if the air
carrier or owner or operator of such vessel that employs the
alien provides documentation that satisfies the Attorney
General that the alien--
(A) has been an employee of such employer for a
period of not less than 1 year preceding the date that
a strike or lawful lockout commenced;
(B) has served as a qualified crewman for such
employer at least once in each of 3 months during the
12-month period preceding such date; and
(C) shall continue to provide the same services that
such alien provided as such a crewman.
(g)(1) The total number of aliens who may be issued visas or
otherwise provided nonimmigrant status during any fiscal year
(beginning with fiscal year 1992)--
(A) under section 101(a)(15)(H)(i)(b), may not
exceed--
(i) 65,000 in each fiscal year before fiscal
year 1999;
(ii) 115,000 in fiscal year 1999;
(iii) 115,000 in fiscal year 2000;
(iv) 195,000 in fiscal year 2001;
(v) 195,000 in fiscal year 2002;
(vi) 195,000 in fiscal year 2003; and
(vii) 65,000 in each succeeding fiscal year;
or
(B) under section 101(a)(15)(H)(ii)(b) may not exceed
66,000.
(2) The numerical limitations of paragraph (1) shall only
apply to principal aliens and not to the spouses or children of
such aliens.
(3) Aliens who are subject to the numerical limitations of
paragraph (1) shall be issued visas (or otherwise provided
nonimmigrant status) in the order in which petitions are filed
for such visas or status. If an alien who was issued a visa or
otherwise provided nonimmigrant status and counted against the
numerical limitations of paragraph (1) is found to have been
issued such visa or otherwise provided such status by fraud or
willfully misrepresenting a material fact and such visa or
nonimmigrant status is revoked, then one number shall be
restored to the total number of aliens who may be issued visas
or otherwise provided such status under the numerical
limitations of paragraph (1) in the fiscal year in which the
petition is revoked, regardless of the fiscal year in which the
petition was approved.
(4) In the case of a nonimmigrant described in section
101(a)(15)(H)(i)(b), the period of authorized admission as such
a nonimmigrant may not exceed 6 years.
(5) The numerical limitations contained in paragraph (1)(A)
shall not apply to any nonimmigrant alien issued a visa or
otherwise provided status under section 101(a)(15)(H)(i)(b)
who--
(A) is employed (or has received an offer of
employment) at an institution of higher education (as
defined in section 101(a) of the Higher Education Act
of 1965 (20 U.S.C. 1001(a))), or a related or
affiliated nonprofit entity;
(B) is employed (or has received an offer of
employment) at a nonprofit research organization or a
governmental research organization; or
(C) has earned a master's or higher degree from a
United States institution of higher education (as
defined in section 101(a) of the Higher Education Act
of 1965 (20 U.S.C. 1001(a)), until the number of aliens
who are exempted from such numerical limitation during
such year exceeds 20,000.
(6) Any alien who ceases to be employed by an employer
described in paragraph (5)(A) shall, if employed as a
nonimmigrant alien described in section 101(a)(15)(H)(i)(b),
who has not previously been counted toward the numerical
limitations contained in paragraph (1)(A), be counted toward
those limitations the first time the alien is employed by an
employer other than one described in paragraph (5).
(7) Any alien who has already been counted, within the 6
years prior to the approval of a petition described in
subsection (c), toward the numerical limitations of paragraph
(1)(A) shall not again be counted toward those limitations
unless the alien would be eligible for a full 6 years of
authorized admission at the time the petition is filed. Where
multiple petitions are approved for 1 alien, that alien shall
be counted only once.
(8)(A) The agreements referred to in section
101(a)(15)(H)(i)(b1) are--
(i) the United States-Chile Free Trade Agreement; and
(ii) the United States-Singapore Free Trade
Agreement.
(B)(i) The Secretary of Homeland Security shall establish
annual numerical limitations on approvals of initial
applications by aliens for admission under section
101(a)(15)(H)(i)(b1).
(ii) The annual numerical limitations described in clause (i)
shall not exceed--
(I) 1,400 for nationals of Chile (as defined in
article 14.9 of the United States-Chile Free Trade
Agreement) for any fiscal year; and
(II) 5,400 for nationals of Singapore (as defined in
Annex 1A of the United States-Singapore Free Trade
Agreement) for any fiscal year.
(iii) The annual numerical limitations described in clause
(i) shall only apply to principal aliens and not to the spouses
or children of such aliens.
(iv) The annual numerical limitation described in paragraph
(1)(A) is reduced by the amount of the annual numerical
limitations established under clause (i). However, if a
numerical limitation established under clause (i) has not been
exhausted at the end of a given fiscal year, the Secretary of
Homeland Security shall adjust upwards the numerical limitation
in paragraph (1)(A) for that fiscal year by the amount
remaining in the numerical limitation under clause (i). Visas
under section 101(a)(15)(H)(i)(b) may be issued pursuant to
such adjustment within the first 45 days of the next fiscal
year to aliens who had applied for such visas during the fiscal
year for which the adjustment was made.
(C) The period of authorized admission as a nonimmigrant
under section 101(a)(15)(H)(i)(b1) shall be 1 year, and may be
extended, but only in 1-year increments. After every second
extension, the next following extension shall not be granted
unless the Secretary of Labor had determined and certified to
the Secretary of Homeland Security and the Secretary of State
that the intending employer has filed with the Secretary of
Labor an attestation under section 212(t)(1) for the purpose of
permitting the nonimmigrant to obtain such extension.
(D) The numerical limitation described in paragraph (1)(A)
for a fiscal year shall be reduced by one for each alien
granted an extension under subparagraph (C) during such year
who has obtained 5 or more consecutive prior extensions.
(9)(A) Subject to subparagraphs (B) and (C), an alien who has
already been counted toward the numerical limitation of
paragraph (1)(B) during fiscal year 2013, 2014, or 2015 shall
not again be counted toward such limitation during fiscal year
2016. Such an alien shall be considered a returning worker.
(B) A petition to admit or otherwise provide status under
section 101(a)(15)(H)(ii)(b) shall include, with respect to a
returning worker--
(i) all information and evidence that the Secretary
of Homeland Security determines is required to support
a petition for status under section
101(a)(15)(H)(ii)(b);
(ii) the full name of the alien; and
(iii) a certification to the Department of Homeland
Security that the alien is a returning worker.
(C) An H-2B visa or grant of nonimmigrant status for a
returning worker shall be approved only if the alien is
confirmed to be a returning worker by--
(i) the Department of State; or
(ii) if the alien is visa exempt or seeking to change
to status under section 101 (a)(15)(H)(ii)(b), the
Department of Homeland Security.
(10) The numerical limitations of paragraph (1)(B) shall be
allocated for a fiscal year so that the total number of aliens
subject to such numerical limits who enter the United States
pursuant to a visa or are accorded nonimmigrant status under
section 101(a)(15)(H)(ii)(b) during the first 6 months of such
fiscal year is not more than 33,000.
(11)(A) The Secretary of State may not approve a number of
initial applications submitted for aliens described in section
101(a)(15)(E)(iii) that is more than the applicable numerical
limitation set out in this paragraph.
(B) The applicable numerical limitation referred to in
subparagraph (A) is 10,500 for each fiscal year.
(C) The applicable numerical limitation referred to in
subparagraph (A) shall only apply to principal aliens and not
to the spouses or children of such aliens.
(h) The fact that an alien is the beneficiary of an
application for a preference status filed under section 204 or
has otherwise sought permanent residence in the United States
shall not constitute evidence of an intention to abandon a
foreign residence for purposes of obtaining a visa as a
nonimmigrant described in subparagraph (H)(i)(b) or (c), (L),
or (V) of section 101(a)(15) or otherwise obtaining or
maintaining the status of a nonimmigrant described in such
subparagraph, if the alien had obtained a change of status
under section 248 to a classification as such a nonimmigrant
before the alien's most recent departure from the United
States.
(i)(1) Except as provided in paragraph (3), for purposes of
section 101(a)(15)(H)(i)(b), section 101(a)(15)(E)(iii), and
paragraph (2), the term ``specialty occupation'' means an
occupation that requires--
(A) theoretical and practical application of a body
of highly specialized knowledge, and
(B) attainment of a bachelor's or higher degree in
the specific specialty (or its equivalent) as a minimum
for entry into the occupation in the United States.
(2) For purposes of section 101(a)(15)(H)(i)(b), the
requirements of this paragraph, with respect to a specialty
occupation, are--
(A) full state licensure to practice in the
occupation, if such licensure is required to practice
in the occupation,
(B) completion of the degree described in paragraph
(1)(B) for the occupation, or
(C)(i) experience in the specialty equivalent to the
completion of such degree, and (ii) recognition of
expertise in the specialty through progressively
responsible positions relating to the specialty.
(3) For purposes of section 101(a)(15)(H)(i)(b1), the term
``specialty occupation'' means an occupation that requires--
(A) theoretical and practical application of a body
of specialized knowledge; and
(B) attainment of a bachelor's or higher degree in
the specific specialty (or its equivalent) as a minimum
for entry into the occupation in the United States.
(j)
(1) Notwithstanding any other provision of this Act,
an alien who is a citizen of Canada or Mexico who seeks
to enter the United States under and pursuant to the
provisions of Section B, Section C, or Section D of
Annex 16-A of the USMCA (as defined in section 3 of the
United States-Mexico-Canada Agreement Implementation
Act), shall not be classified as a nonimmigrant under
such provisions if there is in progress a strike or
lockout in the course of a labor dispute in the
occupational classification at the place or intended
place of employment, unless such alien establishes,
pursuant to regulations promulgated by the Attorney
General, that the alien's entry will not affect
adversely the settlement of the strike or lockout or
the employment of any person who is involved in the
strike or lockout. Notice of a determination under this
paragraph shall be given as may be required by
paragraph 3 of article 16.4 of the USMCA. For purposes
of this paragraph, the term ``citizen of Mexico'' means
``citizen'' as defined in article 16.1 of the USMCA.
(2) Notwithstanding any other provision of this Act except
section 212(t)(1), and subject to regulations promulgated by
the Secretary of Homeland Security, an alien who seeks to enter
the United States under and pursuant to the provisions of an
agreement listed in subsection (g)(8)(A), and the spouse and
children of such an alien if accompanying or following to join
the alien, may be denied admission as a nonimmigrant under
subparagraph (E), (L), or (H)(i)(b1) of section 101(a)(15) if
there is in progress a labor dispute in the occupational
classification at the place or intended place of employment,
unless such alien establishes, pursuant to regulations
promulgated by the Secretary of Homeland Security after
consultation with the Secretary of Labor, that the alien's
entry will not affect adversely the settlement of the labor
dispute or the employment of any person who is involved in the
labor dispute. Notice of a determination under this paragraph
shall be given as may be required by such agreement.
(k)(1) The number of aliens who may be provided a visa as
nonimmigrants under section 101(a)(15)(S)(i) in any fiscal year
may not exceed 200. The number of aliens who may be provided a
visa as nonimmigrants under section 101(a)(15)(S)(ii) in any
fiscal year may not exceed 50.
(2) The period of admission of an alien as such a
nonimmigrant may not exceed 3 years. Such period may not be
extended by the Attorney General.
(3) As a condition for the admission, and continued stay in
lawful status, of such a nonimmigrant, the nonimmigrant--
(A) shall report not less often than quarterly to the
Attorney General such information concerning the
alien's whereabouts and activities as the Attorney
General may require;
(B) may not be convicted of any criminal offense
punishable by a term of imprisonment of 1 year or more
after the date of such admission;
(C) must have executed a form that waives the
nonimmigrant's right to contest, other than on the
basis of an application for withholding of removal, any
action for removal of the alien instituted before the
alien obtains lawful permanent resident status; and
(D) shall abide by any other condition, limitation,
or restriction imposed by the Attorney General.
(4) The Attorney General shall submit a report annually to
the Committee on the Judiciary of the House of Representatives
and the Committee on the Judiciary of the Senate concerning--
(A) the number of such nonimmigrants admitted;
(B) the number of successful criminal prosecutions or
investigations resulting from cooperation of such
aliens;
(C) the number of terrorist acts prevented or
frustrated resulting from cooperation of such aliens;
(D) the number of such nonimmigrants whose admission
or cooperation has not resulted in successful criminal
prosecution or investigation or the prevention or
frustration of a terrorist act; and
(E) the number of such nonimmigrants who have failed
to report quarterly (as required under paragraph (3))
or who have been convicted of crimes in the United
States after the date of their admission as such a
nonimmigrant.
(l)(1) In the case of a request by an interested State
agency, or by an interested Federal agency, for a waiver of the
2-year foreign residence requirement under section 212(e) on
behalf of an alien described in clause (iii) of such section,
the Attorney General shall not grant such waiver unless--
(A) in the case of an alien who is otherwise
contractually obligated to return to a foreign country,
the government of such country furnishes the Director
of the United States Information Agency with a
statement in writing that it has no objection to such
waiver;
(B) in the case of a request by an interested State
agency, the grant of such waiver would not cause the
number of waivers allotted for that State for that
fiscal year to exceed 30;
(C) in the case of a request by an interested Federal
agency or by an interested State agency--
(i) the alien demonstrates a bona fide offer
of full-time employment at a health facility or
health care organization, which employment has
been determined by the Attorney General to be
in the public interest; and
(ii) the alien agrees to begin employment
with the health facility or health care
organization within 90 days of receiving such
waiver, and agrees to continue to work for a
total of not less than 3 years (unless the
Attorney General determines that extenuating
circumstances exist, such as closure of the
facility or hardship to the alien, which would
justify a lesser period of employment at such
health facility or health care organization, in
which case the alien must demonstrate another
bona fide offer of employment at a health
facility or health care organization for the
remainder of such 3-year period); and
(D) in the case of a request by an interested Federal
agency (other than a request by an interested Federal
agency to employ the alien full-time in medical
research or training) or by an interested State agency,
the alien agrees to practice primary care or specialty
medicine in accordance with paragraph (2) for a total
of not less than 3 years only in the geographic area or
areas which are designated by the Secretary of Health
and Human Services as having a shortage of health care
professionals, except that--
(i) in the case of a request by the
Department of Veterans Affairs, the alien shall
not be required to practice medicine in a
geographic area designated by the Secretary;
(ii) in the case of a request by an
interested State agency, the head of such State
agency determines that the alien is to practice
medicine under such agreement in a facility
that serves patients who reside in one or more
geographic areas so designated by the Secretary
of Health and Human Services (without regard to
whether such facility is located within such a
designated geographic area), and the grant of
such waiver would not cause the number of the
waivers granted on behalf of aliens for such
State for a fiscal year (within the limitation
in subparagraph (B)) in accordance with the
conditions of this clause to exceed 10; and
(iii) in the case of a request by an
interested Federal agency or by an interested
State agency for a waiver for an alien who
agrees to practice specialty medicine in a
facility located in a geographic area so
designated by the Secretary of Health and Human
Services, the request shall demonstrate, based
on criteria established by such agency, that
there is a shortage of health care
professionals able to provide services in the
appropriate medical specialty to the patients
who will be served by the alien.
(2)(A) Notwithstanding section 248(a)(2), the
Attorney General may change the status of an alien who
qualifies under this subsection and section 212(e) to
that of an alien described in section
101(a)(15)(H)(i)(b). The numerical limitations
contained in subsection (g)(1)(A) shall not apply to
any alien whose status is changed under the preceding
sentence, if the alien obtained a waiver of the 2-year
foreign residence requirement upon a request by an
interested Federal agency or an interested State
agency.
(B) No person who has obtained a change of status
under subparagraph (A) and who has failed to fulfill
the terms of the contract with the health facility or
health care organization named in the waiver
application shall be eligible to apply for an immigrant
visa, for permanent residence, or for any other change
of nonimmigrant status, until it is established that
such person has resided and been physically present in
the country of his nationality or his last residence
for an aggregate of at least 2 years following
departure from the United States.
(3) Notwithstanding any other provision of this
subsection, the 2-year foreign residence requirement
under section 212(e) shall apply with respect to an
alien described in clause (iii) of such section, who
has not otherwise been accorded status under section
101(a)(27)(H), if--
(A) at any time the alien ceases to comply
with any agreement entered into under
subparagraph (C) or (D) of paragraph (1); or
(B) the alien's employment ceases to benefit
the public interest at any time during the 3-
year period described in paragraph (1)(C).
(m)(1) An alien may not be accorded status as a nonimmigrant
under clause (i) or (iii) of section 101(a)(15)(F) in order to
pursue a course of study--
(A) at a public elementary school or in a publicly
funded adult education program; or
(B) at a public secondary school unless--
(i) the aggregate period of such status at
such a school does not exceed 12 months with
respect to any alien, and (ii) the alien
demonstrates that the alien has reimbursed the
local educational agency that administers the
school for the full, unsubsidized per capita
cost of providing education at such school for
the period of the alien's attendance.
(2) An alien who obtains the status of a nonimmigrant under
clause (i) or (iii) of section 101(a)(15)(F) in order to pursue
a course of study at a private elementary or secondary school
or in a language training program that is not publicly funded
shall be considered to have violated such status, and the
alien's visa under section 101(a)(15)(F) shall be void, if the
alien terminates or abandons such course of study at such a
school and undertakes a course of study at a public elementary
school, in a publicly funded adult education program, in a
publicly funded adult education language training program, or
at a public secondary school (unless the requirements of
paragraph (1)(B) are met).
(n)(1) A nonimmigrant alien described in paragraph (2) who
was previously issued a visa or otherwise provided nonimmigrant
status under section 101(a)(15)(H)(i)(b) is authorized to
accept new employment upon the filing by the prospective
employer of a new petition on behalf of such nonimmigrant as
provided under subsection (a). Employment authorization shall
continue for such alien until the new petition is adjudicated.
If the new petition is denied, such authorization shall cease.
(2) A nonimmigrant alien described in this paragraph is a
nonimmigrant alien--
(A) who has been lawfully admitted into the United
States;
(B) on whose behalf an employer has filed a
nonfrivolous petition for new employment before the
date of expiration of the period of stay authorized by
the Attorney General; and
(C) who, subsequent to such lawful admission, has not
been employed without authorization in the United
States before the filing of such petition.
(o)(1) No alien shall be eligible for admission to the United
States under section 101(a)(15)(T) if there is substantial
reason to believe that the alien has committed an act of a
severe form of trafficking in persons (as defined in section
103 of the Trafficking Victims Protection Act of 2000).
(2) The total number of aliens who may be issued visas or
otherwise provided nonimmigrant status during any fiscal year
under section 101(a)(15)(T) may not exceed 5,000.
(3) The numerical limitation of paragraph (2) shall only
apply to principal aliens and not to the spouses, sons,
daughters, siblings, or parents of such aliens.
(4) An unmarried alien who seeks to accompany, or follow to
join, a parent granted status under section 101(a)(15)(T)(i),
and who was under 21 years of age on the date on which such
parent applied for such status, shall continue to be classified
as a child for purposes of section 101(a)(15)(T)(ii), if the
alien attains 21 years of age after such parent's application
was filed but while it was pending.
(5) An alien described in clause (i) of section 101(a)(15)(T)
shall continue to be treated as an alien described in clause
(ii)(I) of such section if the alien attains 21 years of age
after the alien's application for status under such clause (i)
is filed but while it is pending.
(6) In making a determination under section
101(a)(15)(T)(i)(III)(aa) with respect to an alien, statements
from State and local law enforcement officials that the alien
has complied with any reasonable request for assistance in the
investigation or prosecution of crimes such as kidnapping,
rape, slavery, or other forced labor offenses, where severe
forms of trafficking in persons (as defined in section 103 of
the Trafficking Victims Protection Act of 2000) appear to have
been involved, shall be considered.
(7)(A) Except as provided in subparagraph (B), an alien who
is issued a visa or otherwise provided nonimmigrant status
under section 101(a)(15)(T) may be granted such status for a
period of not more than 4 years.
(B) An alien who is issued a visa or otherwise provided
nonimmigrant status under section 101(a)(15)(T) may extend the
period of such status beyond the period described in
subparagraph (A) if--
(i) a Federal, State, or local law enforcement
official, prosecutor, judge, or other authority
investigating or prosecuting activity relating to human
trafficking or certifies that the presence of the alien
in the United States is necessary to assist in the
investigation or prosecution of such activity;
(ii) the alien is eligible for relief under section
245(l) and is unable to obtain such relief because
regulations have not been issued to implement such
section; or
(iii) the Secretary of Homeland Security determines
that an extension of the period of such nonimmigrant
status is warranted due to exceptional circumstances.
(C) Nonimmigrant status under section 101(a)(15)(T) shall be
extended during the pendency of an application for adjustment
of status under section 245(l).
(p) Requirements Applicable to Section 101(a)(15)(U) Visas.--
(1) Petitioning procedures for section 101(a)(15)(u)
visas.--The petition filed by an alien under section
101(a)(15)(U)(i) shall contain a certification from a
Federal, State, or local law enforcement official,
prosecutor, judge, or other Federal, State, or local
authority investigating criminal activity described in
section 101(a)(15)(U)(iii). This certification may also
be provided by an official of the Service whose ability
to provide such certification is not limited to
information concerning immigration violations. This
certification shall state that the alien ``has been
helpful, is being helpful, or is likely to be helpful''
in the investigation or prosecution of criminal
activity described in section 101(a)(15)(U)(iii).
(2) Numerical limitations.--
(A) The number of aliens who may be issued
visas or otherwise provided status as
nonimmigrants under section 101(a)(15)(U) in
any fiscal year shall not exceed 10,000.
(B) The numerical limitations in subparagraph
(A) shall only apply to principal aliens
described in section 101(a)(15)(U)(i), and not
to spouses, children, or, in the case of alien
children, the alien parents of such children.
(3) Duties of the attorney general with respect to
``u'' visa nonimmigrants.--With respect to nonimmigrant
aliens described in subsection (a)(15)(U)--
(A) the Attorney General and other government
officials, where appropriate, shall provide
those aliens with referrals to nongovernmental
organizations to advise the aliens regarding
their options while in the United States and
the resources available to them; and
(B) the Attorney General shall, during the
period those aliens are in lawful temporary
resident status under that subsection, provide
the aliens with employment authorization.
(4) Credible evidence considered.--In acting on any
petition filed under this subsection, the consular
officer or the Attorney General, as appropriate, shall
consider any credible evidence relevant to the
petition.
(5) Nonexclusive relief.--Nothing in this subsection
limits the ability of aliens who qualify for status
under section 101(a)(15)(U) to seek any other
immigration benefit or status for which the alien may
be eligible.
(6) Duration of status.--The authorized period of
status of an alien as a nonimmigrant under section
101(a)(15)(U) shall be for a period of not more than 4
years, but shall be extended upon certification from a
Federal, State, or local law enforcement official,
prosecutor, judge, or other Federal, State, or local
authority investigating or prosecuting criminal
activity described in section 101(a)(15)(U)(iii) that
the alien's presence in the United States is required
to assist in the investigation or prosecution of such
criminal activity. The Secretary of Homeland Security
may extend, beyond the 4-year period authorized under
this section, the authorized period of status of an
alien as a nonimmigrant under section 101(a)(15)(U) if
the Secretary determines that an extension of such
period is warranted due to exceptional circumstances.
Such alien's nonimmigrant status shall be extended
beyond the 4-year period authorized under this section
if the alien is eligible for relief under section
245(m) and is unable to obtain such relief because
regulations have not been issued to implement such
section and shall be extended during the pendency of an
application for adjustment of status under section
245(m). The Secretary may grant work authorization to
any alien who has a pending, bona fide application for
nonimmigrant status under section 101(a)(15)(U).
(7) Age determinations.--
(A) Children.--An unmarried alien who seeks
to accompany, or follow to join, a parent
granted status under section 101(a)(15)(U)(i),
and who was under 21 years of age on the date
on which such parent petitioned for such
status, shall continue to be classified as a
child for purposes of section
101(a)(15)(U)(ii), if the alien attains 21
years of age after such parent's petition was
filed but while it was pending.
(B) Principal aliens.--An alien described in
clause (i) of section 101(a)(15)(U) shall
continue to be treated as an alien described in
clause (ii)(I) of such section if the alien
attains 21 years of age after the alien's
application for status under such clause (i) is
filed but while it is pending.
(q)(1) In the case of a nonimmigrant described in section
101(a)(15)(V)--
(A) the Attorney General shall authorize the alien to
engage in employment in the United States during the
period of authorized admission and shall provide the
alien with an ``employment authorized'' endorsement or
other appropriate document signifying authorization of
employment; and
(B) the period of authorized admission as such a
nonimmigrant shall terminate 30 days after the date on
which any of the following is denied:
(i) The petition filed under section 204 to
accord the alien a status under section
203(a)(2)(A) (or, in the case of a child
granted nonimmigrant status based on
eligibility to receive a visa under section
203(d), the petition filed to accord the
child's parent a status under section
203(a)(2)(A)).
(ii) The alien's application for an immigrant
visa pursuant to the approval of such petition.
(iii) The alien's application for adjustment
of status under section 245 pursuant to the
approval of such petition.
(2) In determining whether an alien is eligible to be
admitted to the United States as a nonimmigrant under section
101(a)(15)(V), the grounds for inadmissibility specified in
section 212(a)(9)(B) shall not apply.
(3) The status of an alien physically present in the United
States may be adjusted by the Attorney General, in the
discretion of the Attorney General and under such regulations
as the Attorney General may prescribe, to that of a
nonimmigrant under section 101(a)(15)(V), if the alien--
(A) applies for such adjustment;
(B) satisfies the requirements of such section; and
(C) is eligible to be admitted to the United States,
except in determining such admissibility, the grounds
for inadmissibility specified in paragraphs (6)(A),
(7), and (9)(B) of section 212(a) shall not apply.
(r)(1) A visa shall not be issued under the provisions of
section 101(a)(15)(K)(ii) until the consular officer has
received a petition filed in the United States by the spouse of
the applying alien and approved by the Attorney General. The
petition shall be in such form and contain such information as
the Attorney General shall, by regulation, prescribe. Such
information shall include information on any criminal
convictions of the petitioner for any specified crime described
in paragraph (5)(B) and information on any permanent protection
or restraining order issued against the petitioner related to
any specified crime described in subsection (5)(B)(i).
(2) In the case of an alien seeking admission under section
101(a)(15)(K)(ii) who concluded a marriage with a citizen of
the United States outside the United States, the alien shall be
considered inadmissible under section 212(a)(7)(B) if the alien
is not at the time of application for admission in possession
of a valid nonimmigrant visa issued by a consular officer in
the foreign state in which the marriage was concluded.
(3) In the case of a nonimmigrant described in section
101(a)(15)(K)(ii), and any child of such a nonimmigrant who was
admitted as accompanying, or following to join, such a
nonimmigrant, the period of authorized admission shall
terminate 30 days after the date on which any of the following
is denied:
(A) The petition filed under section 204 to accord
the principal alien status under section
201(b)(2)(A)(i).
(B) The principal alien's application for an
immigrant visa pursuant to the approval of such
petition.
(C) The principal alien's application for adjustment
of status under section 245 pursuant to the approval of
such petition.
(4)(A) The Secretary of Homeland Security shall create a
database for the purpose of tracking multiple visa petitions
filed for fiance(e)s and spouses under clauses (i) and (ii) of
section 101(a)(15)(K). Upon approval of a second visa petition
under section 101(a)(15)(K) for a fiance(e) or spouse filed by
the same United States citizen petitioner, the petitioner shall
be notified by the Secretary that information concerning the
petitioner has been entered into the multiple visa petition
tracking database. All subsequent fiance(e) or spouse
nonimmigrant visa petitions filed by that petitioner under such
section shall be entered in the database.
(B)(i) Once a petitioner has had two fiance(e) or spousal
petitions approved under clause (i) or (ii) of section
101(a)(15)(K), if a subsequent petition is filed under such
section less than 10 years after the date the first visa
petition was filed under such section, the Secretary of
Homeland Security shall notify both the petitioner and
beneficiary of any such subsequent petition about the number of
previously approved fiance(e) or spousal petitions listed in
the database.
(ii) To notify the beneficiary as required by clause (i), the
Secretary of Homeland Security shall provide such notice to the
Secretary of State for inclusion in the mailing to the
beneficiary described in section 833(a)(5)(A)(i) of the
International Marriage Broker Regulation Act of 2005 (8 U.S.C.
1375a(a)(5)(A)(i)).
(5) In this subsection:
(A) The terms ``domestic violence'', ``sexual
assault'', ``child abuse and neglect'', ``dating
violence'', ``elder abuse'', and ``stalking'' have the
meaning given such terms in section 3 of the Violence
Against Women and Department of Justice Reauthorization
Act of 2005.
(B) The term ``specified crime'' means the following:
(i) Domestic violence, sexual assault, child
abuse and neglect, dating violence, elder
abuse, stalking, or an attempt to commit any
such crime.
(ii) Homicide, murder, manslaughter, rape,
abusive sexual contact, sexual exploitation,
incest, torture, trafficking, peonage, holding
hostage, involuntary servitude, slave trade,
kidnapping, abduction, unlawful criminal
restraint, false imprisonment, or an attempt to
commit any of the crimes described in this
clause.
(iii) At least three convictions for crimes
relating to a controlled substance or alcohol
not arising from a single act.
* * * * * * *
[all]