(a) In general
(1) Conditional basis for status
Notwithstanding any other provision of this chapter, 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.
(2) Notice of requirements
(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 the commercial enterprise was intended solely as a means of evading the immigration laws of the United States,
(B)
(i) the alien did not invest, or was not actively in the process of investing, the requisite capital; or
(ii) 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 1153(b)(5) of this title,
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 1186a of this title) 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
(A) In general
If—
(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 1 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) 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 1153(b)(5) of this title.
(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 subchapter 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 1153(b)(5) of this title.
(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) The term "commercial enterprise" includes a limited partnership.
References in Text
This chapter, referred to in subsec. (a)(1), was in the original, "this Act", meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.
Amendments
2002—Subsec. (b)(1)(A). Pub. L. 107–273, §11036(b)(1)(A), substituted "investment in" for "establishment of".
Subsec. (b)(1)(B). Pub. L. 107–273, §11036(b)(1)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows:
"(B)(i) a commercial enterprise was not established by the alien,
"(ii) the alien did not invest or was not actively in the process of investing the requisite capital; or
"(iii) the alien was not sustaining the actions described in clause (i) or (ii) throughout the period of the alien's residence in the United States, or".
Subsec. (d)(1). Pub. L. 107–273, §11036(b)(2), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: "Each petition under subsection (c)(1)(A) of this section shall contain facts and information demonstrating that—
"(A) a commercial enterprise was established by the alien;
"(B) the alien invested or was actively in the process of investing the requisite capital; and
"(C) the alien sustained the actions described in subparagraphs (A) and (B) throughout the period of the alien's residence in the United States."
Subsec. (f)(3). Pub. L. 107–273, §11036(b)(3), added par. (3).
1996—Subsec. (b)(2). Pub. L. 104–208 substituted "removal" for "deportation" in heading and "remove" for "deport" in text.
Subsec. (c)(2)(B). Pub. L. 104–208 substituted "removal" for "deportation" in heading and text.
Subsec. (c)(3)(D). Pub. L. 104–208 substituted "removal" for "deportation" in heading and "remove" for "deport" in text.
Subsec. (d)(2)(C). Pub. L. 104–208 substituted "removal" for "deportation" wherever appearing in heading and text.
1991—Subsec. (c)(2)(A). Pub. L. 102–232, §302(b)(3)(A), in closing provisions inserted parenthetical provision relating to alien's spouse and children.
Subsecs. (c)(3)(B), (d)(2)(A). Pub. L. 102–232, §302(b)(3)(B), struck out "obtaining the status of" before "lawful admission".
Effective Date of 2002 Amendment
Amendment by Pub. L. 107–273 effective Nov. 2, 2002 and applicable to aliens having certain petitions pending under this section or section 1154 of this title on or after Nov. 2, 2002, see section 11036(c) of Pub. L. 107–273, set out as a note under section 1153 of this title.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.
Effective Date of 1991 Amendment
Amendment by Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title.
Effective Date
Section effective Oct. 1, 1991, and applicable beginning with fiscal year 1992, see section 161(a) of Pub. L. 101–649, set out as an Effective Date of 1990 Amendment note under section 1101 of this title.
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
Immigration Benefits
Pub. L. 107–273, div. C, title I, §§11031–11034, Nov. 2, 2002, 116 Stat. 1837–1846, provided that:
"SEC. 11031. REMOVAL OF CONDITIONAL BASIS OF PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHILDREN.
"(a)
"(b)
"(1)
"(A) filed, under section 204(a)(1)(H) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any predecessor provision), a petition to accord the alien a status under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)) that was approved by the Attorney General after January 1, 1995, and before August 31, 1998;
"(B) pursuant to such approval, obtained the status of an alien entrepreneur with permanent resident status on a conditional basis described in section 216A of such Act (8 U.S.C. 1186b); and
"(C) timely filed, in accordance with section 216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) and before the date of the enactment of this Act [Nov. 2, 2002], a petition requesting the removal of such conditional basis.
"(2)
"(A)
"(B)
"(i) the alien is inadmissible or deportable on any ground; or
"(ii) the petition described in paragraph (1)(C) was denied on the ground that it contains a material misrepresentation in the facts and information described in section 216A(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)) and alleged in the petition with respect to a commercial enterprise.
"(C)
"(c)
"(1)
"(A)
"(i) the petition described in subsection (b)(1)(C) contains any material misrepresentation in the facts and information described in section 216A(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)) and alleged in the petition with respect to a commercial enterprise (regardless of whether such enterprise is a limited partnership and regardless of whether the alien entered the enterprise after its formation);
"(ii) subject to subparagraphs (B) and (C), such enterprise created full-time jobs 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 eligible alien and the alien's spouse, sons, or daughters), and those jobs exist or existed on any of the dates described in subparagraph (D); and
"(iii) on any of the dates described in subparagraph (D), the alien is in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)(B)).
"(B)
"(C)
"(D)
"(i) The date on which the petition described in subsection (b)(1)(C) is filed.
"(ii) 6 months after the date described in clause (i).
"(iii) The date on which the determination under subparagraph (A) or (C) is made.
"(E)
"(F)
"(i)
"(ii)
"(iii)
"(iv)
"(2)
"(A)
"(B)
"(C)
"(i) 90-
"(ii)
"(D)
"(i)
"(ii)
"(E)
"(i) the petition contains any material misrepresentation in the facts and information alleged in the petition with respect to the commercial enterprises included in such petition;
"(ii) all such enterprises, considered together, created full-time jobs 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 eligible alien and the alien's spouse, sons, or daughters), and those jobs exist on the date on which the determination is made, except that—
"(I) this clause shall apply only if the Attorney General made an adverse determination with respect to the eligible alien under paragraph (1)(A)(ii);
"(II) the provisions of subparagraphs (B) and (C) of paragraph (1) shall apply to a determination under this clause in the same manner as they apply to a determination under paragraph (1)(A)(ii); and
"(III) if the Attorney General determined under paragraph (1)(A)(ii) that any jobs satisfying the requirement of such paragraph were created, the number of those jobs shall be subtracted from the number of jobs otherwise needed to satisfy the requirement of this clause; and
"(iii) considering all such enterprises together, on the date on which the determination is made, the eligible alien is in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)(B)), except that—
"(I) this clause shall apply only if the Attorney General made an adverse determination with respect to the eligible alien under paragraph (1)(A)(iii); and
"(II) if the Attorney General determined under paragraph (1)(A)(iii) that any capital amount was invested that could be credited towards compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)(B)), such amount shall be subtracted from the amount of capital otherwise needed to satisfy the requirement of this clause.
"(F)
"(G)
"(i)
"(ii)
"(d)
"(e)
"(f)
"SEC. 11032. CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHILDREN.
"(a)
"(b)
"(1) filed, under section 204(a)(1)(H) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any predecessor provision), a petition to accord the alien a status under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)) that was approved by the Attorney General after January 1, 1995, and before August 31, 1998;
"(2) pursuant to such approval, timely filed before the date of the enactment of this Act [Nov. 2, 2002] an application for adjustment of status under section 245 of such Act (8 U.S.C. 1255) or an application for an immigrant visa under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)); and
"(3) is not inadmissible or deportable on any ground.
"(c)
"(1)
"(2)
"(A)
"(i) failed to satisfy section 203(b)(5)(A)(ii) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)(A)(ii)); or
"(ii) departed the United States without advance parole.
"(B)
"(d)
"(e)
"(1)
"(2)
"(A) the petition described in paragraph (1) contains any material misrepresentation in the facts and information alleged in the petition with respect to the commercial enterprises included in the petition;
"(B) subject to subparagraphs (B) and (C) of section 11031(c)(1), all such enterprises, considered together, created full-time jobs 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 alien and the alien's spouse, sons, or daughters), and those jobs exist or existed on either of the dates described in paragraph (3); and
"(C) considering the alien's investments in such enterprises on either of the dates described in paragraph (3), or on both such dates, the alien is or was in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)(B)).
"(3)
"(A) The date on which the application described in subsection (b)(2) was filed.
"(B) The date on which the determination under paragraph (2) is made.
"(f)
"SEC. 11033. REGULATIONS.
"The Immigration and Naturalization Service shall promulgate regulations to implement this chapter [chapter 1 (§§11031–11034) of subtitle B of title I of div. C of Pub. L. 107–273, enacting this note] not later than 120 days after the date of enactment of this Act [Nov. 2, 2002]. Until such regulations are promulgated, the Attorney General shall not deny a petition filed or pending under section 216A(c)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1186b(c)(1)(A)) that relates to an eligible alien described in section 11031, or on an application filed or pending under section 245 of such Act (8 U.S.C. 1255) that relates to an eligible alien described in section 11032. Until such regulations are promulgated, the Attorney General shall not initiate or proceed with removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) that relate to an eligible alien described in section 11031 or 11032.
"SEC. 11034. DEFINITIONS.
"Except as otherwise provided, the terms used in this chapter shall have the meaning given such terms in section 101(b) of the Immigration and Nationality Act (8 U.S.C. 1101(b))."
1 So in original.