INA Section 203 (b)(5)
(b) Preference Allocation for Employment-Based Immigrants. - Aliens subject to the worldwide level specified in section 201(d) for employment-based immigrants in a fiscal year shall be allotted visas as follows:
(1)
Priority workers. - Visas shall first be made available in a number
not to exceed 28.6 percent of such worldwide level, plus any visas
not required for the classes specified in paragraphs (4) and (5), to
qualified immigrants who are aliens described in any of the following
subparagraphs (A) through (C):
(A)
Aliens with extraordinary ability. - An alien is described in this
subparagraph if -
(i)
the alien has extraordinary ability in the sciences, arts, education,
business, or athletics which has been demonstrated by sustained
national or international acclaim and whose achievements have been
recognized in the field through extensive documentation,
(ii)
the alien seeks to enter the United States to continue work in the
area of extraordinary ability, and
(iii)
the alien's entry into the United States will substantially benefit
prospectively the United States.
(B)
Outstanding professors and researchers. -An alien is described in
this subparagraph if -
(i)
the alien is recognized internationally as outstanding in a specific
academic area,
(ii)
the alien has at least 3 years of experience in teaching or research
in the academic area, and
(iii)
the alien seeks to enter the United States-
(I)
for a tenured position (or tenure-track position) within a university
or institution of higher education to teach in the academic area,
(II)
for a comparable position with a university or institution of higher
education to conduct research in the area, or
(III)
for a comparable position to conduct research in the area with a
department, division, or institute of a private employer, if the
department, division, or institute employs at least 3 persons
full-time in research activities and has achieved documented
accomplishments in an academic field.
(C)
Certain multinational executives and managers. An alien is described
in this subparagraph if the alien, in the 3 years preceding the time
of the alien's application for classification and admission into the
United States under this subparagraph, has been employed for at least
1 year by a firm or corporation or other legal entity or an affiliate
or subsidiary thereof and the alien seeks to enter the United States
in order to continue to render services to the same employer or to a
subsidiary or affiliate thereof in a capacity that is managerial or
executive.
(2)
Aliens who are members of the professions holding advanced degrees or
aliens of exceptional ability. -
(A)
In general. - Visas shall be made available, in a number not to
exceed 28.6 percent of such worldwide level, plus any visas not
required for the classes specified in paragraph (1), to qualified
immigrants who are members of the professions holding advanced
degrees or their equivalent or who because of their exceptional
ability in the sciences, arts, or business, will substantially
benefit prospectively the national economy, cultural or educational
interests, or welfare of the United States, an d whose services in
the sciences, arts, professions, or business are sought by an
employer in the United States.
(B)
(i) 1/
1a/
Subject
to clause (ii), the Attorney General may, when the Attorney General
deems it to be in the national interest, waive the requirements of
subparagraph (A) that an alien's services in the sciences, arts,
professions, or business be sought by an employer in the United
States.
(ii)
(I) The Attorney General shall grant a national interest waiver
pursuant to clause (i) on behalf of any alien physician with respect
to whom a petition for preference classification has been filed under
subparagraph (A) if--
(aa)
the alien physician agrees to work full time as a physician in an
area or areas designated by the Secretary of Health and Human
Services as having a shortage of health care professionals or at a
health care facility under the jurisdiction of the Secretary of
Veterans Affairs; and
(bb)
a Federal agency or a department of public health in any State has
previously determined that the alien physician's work in such an area
or at such facility was in the public interest.
(II)
No permanent resident visa may be issued to an alien physician
described in subclause (I) by the Secretary of State under section
204(b)
,
and the Attorney General may not adjust the status of such an alien
physician from that of a nonimmigrant alien to that of a permanent
resident alien under section 245
,
until such time as the alien has worked full time as a physician for
an aggregate of 5 years (not including the time served in the status
of an alien described in section 101(a)(15)(J)
),
in an area or areas designated by the Secretary of Health and Human
Services as having a shortage of health care professionals or at a
health care facility under the jurisdiction of the Secretary of
Veterans Affairs.
(III)
Nothing in this subparagraph may be construed to prevent the filing
of a petition with the Attorney General for classification under
section 204(a)
,
or the filing of an application for adjustment of status under
section 245
,
by an alien physician described in subclause (I) prior to the date by
which such alien physician has completed the service described in
subclause (II).
(IV)
The requirements of this subsection do not affect waivers on behalf
of alien physicians approved under section 203(b)(2)(B)
before
the enactment date of this subsection. In the case of a physician for
whom an application for a waiver was filed under section 203(b)(2)(B)
prior to November 1, 1998, the Attorney General shall grant a
national interest waiver pursuant to section 203(b)(2)(B) except that
the alien is required to have worked full time as a physician for an
aggregate of 3 years (not including time served in the status of an
alien described in section 101(a)(15)(J)
)
before a visa can be issued to the alien under section 204(b)
or
the status of the alien is adjusted to permanent resident under
section 245
.
(C)
Determination of exceptional ability. - In determining under
subparagraph (A) whether an immigrant has exceptional ability, the
possession of a degree, diploma, certificate, or similar award from a
college, university, school, or other institution of learning or a
license to practice or certification for a particular profession or
occupation shall not by itself be considered sufficient evidence of
such exceptional ability.
(3)
Skilled workers, professionals, and other workers.-
(A)
In general. - Visas shall be made available, in a number not to
exceed 28.6 percent of such worldwide level, plus any visas not
required for the classes specified in paragraphs (1) and (2), to the
following classes of aliens who are not described in paragraph (2):
(i)
Skilled workers. - Qualified immigrants who are capable, at the time
of petitioning for classification under this paragraph, of performing
skilled labor (requiring at least 2 years training or experience),
not of a temporary or seasonal nature, for which qualified workers
are not available in the United States.
(ii)
Professionals. - Qualified immigrants who hold baccalaureate degrees
and who are members of the professions.
(iii)
Other workers. - Other qualified immigrants who are capable, at the
time of petitioning for classification under this paragraph, of
performing unskilled labor, not of a temporary or seasonal nature,
for which qualified workers are not available in the United States.
(B)
Limitation on other workers. - Not more than 10,000 of the visas made
available under this paragraph in any fiscal year may be available
for qualified immigrants described in subparagraph (A)(iii).
(C)
Labor certification required.- An immigrant visa may not be issued to
an immigrant under subparagraph (A) until the consular officer is in
receipt of a determination made by the Secretary of Labor pursuant to
the provisions of section 212(a)(5)(A)
.
(4)
Certain special immigrants. - Visas shall be made available, in a
number not to exceed 7.1 percent of such worldwide level, to
qualified special immigrants described in section 101(a)(27)
(other
than those described in subparagraph (A) or (B) thereof), of which
not more than 5,000 may be made available in any fiscal year to
special immigrants described in subclause (II) or (III) of section
101(a)(27)(C)(ii)
,
2/
and
not more than 100 may be made available in any fiscal year to special
immigrants, excluding spouses and children, who are described in
section 101(a)(27)(M)
.
(A)
In general. - Visas shall be made available, in a number not to
exceed 7.1 percent of such worldwide level, to qualified immigrants
seeking to enter the United States for the purpose of engaging in a
new commercial 4/
enterprise
(including a limited partnership)--
(i)
4/
in
which such alien has invested (after the date of the enactment of the
Immigration Act of 1990) or, is actively in the process of investing,
capital in an amount not less than the amount specified in
subparagraph (C), and
(ii)
4/
which
will benefit the United States economy and create full-time
employment for not fewer than 10 United States citizens or aliens
lawfully admitted for permanent residence or other immigrants
lawfully authorized to be employed in the United States (other than
the immigrant and the immigrant's spouse, sons, or daughters).
(B)
Set-aside for targeted employment areas.-
(i)
In general. - Not less than 3,000 of the visas made available under
this paragraph in each fiscal year shall be reserved for qualified
immigrants who 4/
invest
in a new commercial enterprise described in subparagraph (A) which
will create employment in a targeted employment area.
(ii)
Targeted employment area defined. - In this paragraph, the term
``targeted employment area'' means, at the time of the investment, a
rural area or an area which has experienced high unemployment (of at
least 150 percent of the national average rate).
(iii)
Rural area defined. - In this paragraph, the term ``rural area''
means any area other than an area within a metropolitan statistical
area or within the outer boundary of any city or town having a
population of 20,000 or more (based on the most recent decennial
census of the United States).
(C)
Amount of capital required. -
(i)
In general. - Except as otherwise provided in this subparagraph, the
amount of capital required under subparagraph (A) shall be
$1,000,000. The Attorney General, in consultation with the Secretary
of Labor and the Secretary of State, may from time to time prescribe
regulations increasing the dollar amount specified under the previous
sentence.
(ii)
Adjustment for targeted employment areas.- The Attorney General may,
in the case of investment made in a targeted employment area, specify
an amount of capital required under subparagraph (A) that is less
than (but not less than 1/2 of) the amount specified in clause (i).
(iii)
Adjustment for high employment areas.-In the case of an investment
made in a part of a metropolitan statistical area that at the time of
the investment -
(I)
is not a targeted employment area, and
(II)
is an area with an unemployment rate significantly below the national
average unemployment rate, the Attorney General may specify an amount
of capital required under subparagraph (A) that is greater than (but
not greater than 3 times) the amount specified in clause (I).
(D)
4/
Full-time
employment defined.--In this paragraph, the term `full-time
employment' means employment in a position that requires at least 35
hours of service per week at any time, regardless of who fills the
position.
INA Section 216A
Sec. 216A. [8 U.S.C. 1186b]
(1)
Conditional basis for status.-Notwithstanding any other provision of
this Act, an alien entrepreneur (as defined in subsection (f)(1)),
alien spouse, and alien child (as defined in subsection (f)(2)) shall
be considered, at the time of obtaining the status of an alien
lawfully admitted for permanent residence, to have obtained such
status on a conditional basis subject to the provisions of this
section.
(A)
At time of obtaining permanent residence.-At the time an alien
entrepreneur, alien spouse, or alien child obtains permanent resident
status on a conditional basis under paragraph (1), the Attorney
General shall provide for notice to such an entrepreneur, spouse, or
child respecting the provisions of this section and the requirements
of subsection (c)(1) to have the conditional basis of such status
removed.
(B)
At time of required petition.-In addition, the Attorney General shall
attempt to provide notice to such an entrepreneur, spouse, or child,
at or about the beginning of the 90-day period described in
subsection (d)(2)(A), of the requirements of subsection (c)(1).
(C)
Effect of failure to provide notice.-The failure of the Attorney
General to provide a notice under this paragraph shall not affect the
enforcement of the provisions of this section with respect to such an
entrepreneur, spouse, or child.
(b)
Termination of status if finding that qualifying entrepreneurship
improper.-
(1)
In general.-In the case of an alien entrepreneur with permanent
resident status on a conditional basis under subsection (a), if the
Attorney General determines, before the second anniversary of the
alien's obtaining the status of lawful admission for permanent
residence, that-
(A)
the investment in 1/
the
commercial enterprise was intended solely as a means of evading the
immigration laws of the United States,
(B)
(i) 1/
the
alien did not invest, or was not actively in the process of
investing, the requisite capital; or
(ii)
1/
the
alien was not sustaining the actions described in clause (i)
throughout the period of the alien's residence in the United States;
or
(C)
the alien was otherwise not conforming to the requirements of section
203(b)(5)
,
then the Attorney General shall so notify the alien involved and,
subject to paragraph (2), shall terminate the permanent resident
status of the alien (and the alien spouse and alien child) involved
as of the date of the determination.
(2)
Hearing in removal proceeding.-Any alien whose permanent resident
status is terminated under paragraph (1) may request a review of such
determination in a proceeding to remove the alien. In such
proceeding, the burden of proof shall be on the Attorney General to
establish, by a preponderance of the evidence, that a condition
described in paragraph (1) is met.
(c)
Requirements of Timely Petition and Interview for Removal of
Condition.-
(1)
In general.-In order for the conditional basis established under
subsection (a) for an alien entrepreneur, alien spouse, or alien
child to be removed-
(A)
the alien entrepreneur must submit to the Attorney General, during
the period described in subsection (d)(2), a petition which requests
the removal of such conditional basis and which states, under penalty
of perjury, the facts and information described in subsection (d)(1),
and
(B)
in accordance with subsection (d)(3), the alien entrepreneur must
appear for a personal interview before an officer or employee of the
Service respecting the facts and information described in subsection
(d)(1).
(2)
Termination of permanent resident status for failure to file petition
or have personal interview.-
(A)
In general.-In the case of an alien with permanent resident status on
a conditional basis under subsection (a), if-
(i)
no petition is filed with respect to the alien in accordance with the
provisions of paragraph (1)(A), or
(ii)
unless there is good cause shown, the alien entrepreneur fails to
appear at the interview described in paragraph (1)(B) (if required
under subsection (d)(3)), the Attorney General shall terminate the
permanent resident status of the alien (and the alien's spouse and
children if it was obtained on a conditional basis under this section
or section 216) as of the second anniversary of the alien's lawful
admission for permanent residence.
(B)
Hearing in removal proceeding.-In any removal proceeding with respect
to an alien whose permanent resident status is terminated under
subparagraph (A), the burden of proof shall be on the alien to
establish compliance with the conditions of paragraphs (1)(A) and
(1)(B).
(3)
Determination after petition and interview.-
(i)
a petition is filed in accordance with the provisions of paragraph
(1)(A), and
(ii)
the alien entrepreneur appears at any interview described in
paragraph (1)(B), the Attorney General shall make a determination,
within 90 days of the date of the such filing or interview (whichever
is later), as to whether the facts and information described in
subsection (d)(1) and alleged in the petition are true with respect
to the qualifying commercial enterprise.
(B)
Removal of conditional basis if favorable determination.-If the
Attorney General determines that such facts and information are true,
the Attorney General shall so notify the alien involved and shall
remove the conditional basis of the alien's status effective as of
the second anniversary of the alien's lawful admission for permanent
residence.
(C)
Termination if adverse determination.-If the Attorney General
determines that such facts and information are not true, the Attorney
General shall so notify the alien involved and, subject to
subparagraph (D), shall terminate the permanent resident status of an
alien entrepreneur, alien spouse, or alien child as of the date of
the determination.
(D)
Hearing in removal proceeding.-Any alien whose permanent resident
status is terminated under subparagraph (C) may request a review of
such determination in a proceeding to remove the alien. In such
proceeding, the burden of proof shall be on the Attorney General to
establish, by a preponderance of the evidence, that the facts and
information described in subsection (d)(1) and alleged in the
petition are not true with respect to the qualifying commercial
enterprise.
(d)
Details of Petition and Interview.-
(1)
2/
Contents
of petition.--Each petition under subsection (c)(1)(A) shall contain
facts and information demonstrating that the alien
(A)(i)
invested, or is actively in the process of investing, the requisite
capital; and
(ii) sustained the actions described in
clause (i) throughout the period of the alien's residence in the
United States; and
(B)
is otherwise conforming to the requirements of section 203(b)(5)
.
(2)
Period for filing petition.-
(A)
90-day period before second anniversary.-Except as provided in
subparagraph (B), the petition under subsection (c)(1)(A) must be
filed during the 90-day period before the second anniversary of the
alien's lawful admission for permanent residence.
(B)
Date petitions for good cause.-Such a petition may be considered if
filed after such date, but only if the alien establishes to the
satisfaction of the Attorney General good cause and extenuating
circumstances for failure to file the petition during the period
described in subparagraph (A).
(C)
Filing of petitions during removal.-In the case of an alien who is
the subject of removal hearings as a result of failure to file a
petition on a timely basis in accordance with subparagraph (A), the
Attorney General may stay such removal proceedings against an alien
pending the filing of the petition under subparagraph (B).
(3)
Personal interview.-The interview under subsection (c)(1)(B) shall be
conducted within 90 days after the date of submitting a petition
under subsection (c)(1)(A) and at a local office of the Service,
designated by the Attorney General, which is convenient to the
parties involved. The Attorney General, in the Attorney General's
discretion, may waive the deadline for such an interview or the
requirement for such an interview in such cases as may be
appropriate.
(e)
Treatment of Period for Purposes of Naturalization.-For purposes of
title III, in the case of an alien who is in the United States as a
lawful permanent resident on a conditional basis under this section,
the alien shall be considered to have been admitted as an alien
lawfully admitted for permanent residence and to be in the United
States as an alien lawfully admitted to the United States for
permanent residence.
(f)
Definitions.-In this section:
(1)
The term "alien entrepreneur" means an alien who obtains
the status of an alien lawfully admitted for permanent residence
(whether on a conditional basis or otherwise) under section 203(b)(5)
.
(2)
The term "alien spouse" and the term "alien child"
mean an alien who obtains the status of an alien lawfully admitted
for permanent residence (whether on a conditional basis or otherwise)
by virtue of being the spouse or child, respectively, of an alien
entrepreneur.
(3)
3/
The
term `commercial enterprise' includes a limited partnership.
FOOTNOTES
FOR SECTION 216A
FN
1
Section 216A(b)(1)(A)
and
(B)
were
amended by section 11036(b)(1)(A)
and
(B)
of
the 21st Century Department of Justice Appropriations Authorization
Act, Public Law 107-273, dated November 2, 2002.
(c)
Effective Date.--The amendments made by section 11036
shall
take effect on the date of the enactment of this Act (Public Law
107-273 dated November 2, 2002) and shall apply to aliens having any
of the following petitions pending on or after the date of the
enactment of this Act:
(1)
A petition under section 204(a)(1)(H)
of
the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any
predecessor provision), with respect to status under section
203(b)(5)
of
such Act (8 U.S.C. 1153(b)(5)).
(2)
A petition under section 216A(c)(1)(A)
of
such Act (8 U.S.C. 1186b(c)(1)(A)) to remove the conditional basis of
an alien's permanent resident status.
FN
2 Section
216A(d)(1)
revised
by section 11036(b)(2)
of
the 21st Century Department of Justice Appropriations Authorization
Act, Public Law 107-273, dated November 2, 2002.
(c)
Effective Date.--The amendments made by section 11036
shall
take effect on the date of the enactment of this Act (Public Law
107-273 dated November 2, 2002) and shall apply to aliens having any
of the following petitions pending on or after the date of the
enactment of this Act:
(1)
A petition under section 204(a)(1)(H)
of
the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any
predecessor provision), with respect to status under section
203(b)(5)
of
such Act (8 U.S.C. 1153(b)(5)).
(2)
A petition under section 216A(c)(1)(A)
of
such Act (8 U.S.C. 1186b(c)(1)(A)) to remove the conditional basis of
an alien's permanent resident status.
FN
3
Section 216A(f)(3)
added
by section 11036(b)(3)
of
the 21st Century Department of Justice Appropriations Authorization
Act, Public Law 107-273, dated November 2, 2002.
(c)
Effective Date.--The amendments made by section 11036
shall
take effect on the date of the enactment of this Act (Public Law
107-273 dated November 2, 2002) and shall apply to aliens having any
of the following petitions pending on or after the date of the
enactment of this Act:
(1)
A petition under section 204(a)(1)(H)
of
the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any
predecessor provision), with respect to status under section
203(b)(5)
of
such Act (8 U.S.C. 1153(b)(5)).
(2)
A petition under section 216A(c)(1)(A)
of
such Act (8 U.S.C. 1186b(c)(1)(A)) to remove the conditional basis of
an alien's permanent resident status.
| File Type | application/msword |
| File Title | INA Section 203 (b)(5) |
| Author | Liana Miranda |
| Last Modified By | Liana Miranda |
| File Modified | 2011-03-08 |
| File Created | 2011-03-08 |