Part I—Selection System
§1151. Worldwide level of immigration
(a) In general
Exclusive of aliens described in subsection (b), aliens born in a foreign state or dependent area who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence are limited to—
(1) family-sponsored immigrants described in
(2) employment-based immigrants described in
(3) for fiscal years beginning with fiscal year 1995, diversity immigrants described in
(b) Aliens not subject to direct numerical limitations
Aliens described in this subsection, who are not subject to the worldwide levels or numerical limitations of subsection (a), are as follows:
(1)(A) Special immigrants described in subparagraph (A) or (B) of
(B) Aliens who are admitted under
(C) Aliens whose status is adjusted to permanent residence under
(D) Aliens whose removal is canceled under
(E) Aliens provided permanent resident status under
(2)(A)(i)
(ii) Aliens admitted under
(B) Aliens born to an alien lawfully admitted for permanent residence during a temporary visit abroad.
(c) Worldwide level of family-sponsored immigrants
(1)(A) The worldwide level of family-sponsored immigrants under this subsection for a fiscal year is, subject to subparagraph (B), equal to—
(i) 480,000, minus
(ii) the sum of the number computed under paragraph (2) and the number computed under paragraph (4), plus
(iii) the number (if any) computed under paragraph (3).
(B)(i) For each of fiscal years 1992, 1993, and 1994, 465,000 shall be substituted for 480,000 in subparagraph (A)(i).
(ii) In no case shall the number computed under subparagraph (A) be less than 226,000.
(2) The number computed under this paragraph for a fiscal year is the sum of the number of aliens described in subparagraphs (A) and (B) of subsection (b)(2) who were issued immigrant visas or who otherwise acquired the status of aliens lawfully admitted to the United States for permanent residence in the previous fiscal year.
(3)(A) The number computed under this paragraph for fiscal year 1992 is zero.
(B) The number computed under this paragraph for fiscal year 1993 is the difference (if any) between the worldwide level established under paragraph (1) for the previous fiscal year and the number of visas issued under
(C) The number computed under this paragraph for a subsequent fiscal year is the difference (if any) between the maximum number of visas which may be issued under
(4) The number computed under this paragraph for a fiscal year (beginning with fiscal year 1999) is the number of aliens who were paroled into the United States under
(A) who did not depart from the United States (without advance parole) within 365 days; and
(B) who (i) did not acquire the status of aliens lawfully admitted to the United States for permanent residence in the two preceding fiscal years, or (ii) acquired such status in such years under a provision of law (other than subsection (b)) which exempts such adjustment from the numerical limitation on the worldwide level of immigration under this section.
(5) If any alien described in paragraph (4) (other than an alien described in paragraph (4)(B)(ii)) is subsequently admitted as an alien lawfully admitted for permanent residence, such alien shall not again be considered for purposes of paragraph (1).
(d) Worldwide level of employment-based immigrants
(1) The worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to—
(A) 140,000, plus
(B) the number computed under paragraph (2).
(2)(A) The number computed under this paragraph for fiscal year 1992 is zero.
(B) The number computed under this paragraph for fiscal year 1993 is the difference (if any) between the worldwide level established under paragraph (1) for the previous fiscal year and the number of visas issued under
(C) The number computed under this paragraph for a subsequent fiscal year is the difference (if any) between the maximum number of visas which may be issued under
(e) Worldwide level of diversity immigrants
The worldwide level of diversity immigrants is equal to 55,000 for each fiscal year.
(f) Rules for determining whether certain aliens are immediate relatives
(1) Age on petition filing date
Except as provided in paragraphs (2) and (3), for purposes of subsection (b)(2)(A)(i), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of
(2) Age on parent's naturalization date
In the case of a petition under
(3) Age on marriage termination date
In the case of a petition under
(4) Application to self-petitions
Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.
(June 27, 1952, ch. 477, title II, ch. 1, §201,
Editorial Notes
Amendments
2009—Subsec. (b)(2)(A)(i).
2006—Subsec. (f)(4).
2002—Subsec. (f).
2000—Subsec. (b)(2)(A)(i).
1996—Subsec. (b)(1)(C).
Subsec. (b)(1)(D).
Subsec. (c)(1)(A)(ii).
Subsec. (c)(4), (5).
1994—Subsec. (b)(2)(A)(i).
1991—Subsec. (c)(3).
Subsec. (d)(2).
1990—
1981—Subsec. (a).
1980—Subsec. (a).
1978—Subsec. (a).
1976—Subsec. (a).
Subsecs. (c) to (e).
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2009 Amendment
"(A)
"(B)
"(i)
"(ii)
"(I) the alien's United States citizen spouse died before the date of the enactment of this Act;
"(II) the alien and the citizen spouse were married for less than 2 years at the time of the citizen spouse's death; and
"(III) the alien has not remarried."
Effective Date of 2002 Amendment
"(1) a petition for classification under section 204 of the Immigration and Nationality Act (
"(2) a petition for classification under section 204 of the Immigration and Nationality Act (
"(3) an application pending before the Department of Justice or the Department of State on or after such date."
Effective Date of 1996 Amendment
Amendment by section 308(e)(5), (g)(8)(A)(i) of
Effective Date of 1994 Amendments
Amendment by
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
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
Extension of Posthumous Benefits to Surviving Spouses, Children, and Parents
"(a)
"(1)
"(2)
"(A)
"(B)
"(3)
"(A)
"(B)
"(C)
"(b)
"(1)
"(2)
"(A) served honorably in an active duty status in the military, air, or naval forces of the United States;
"(B) died as a result of injury or disease incurred in or aggravated by combat; and
"(C) was granted posthumous citizenship under section 329A of the Immigration and Nationality Act (
"(c)
"(1)
"(A)
"(B)
"(2)
"(3)
"(A) served honorably in an active duty status in the military, air, or naval forces of the United States;
"(B) died as a result of injury or disease incurred in or aggravated by combat; and
"(C) was granted posthumous citizenship under section 329A of the Immigration and Nationality Act (
"(d)
"(1)
"(2)
"(A) served honorably in an active duty status in the military, air, or naval forces of the United States;
"(B) died as a result of injury or disease incurred in or aggravated by combat; and
"(C) was granted posthumous citizenship under section 329A of the Immigration and Nationality Act (
"(e)
[Section 1703 of
Temporary Reduction in Diversity Visas
"(1) Beginning in fiscal year 1999, subject to paragraph (2), the number of visas available for a fiscal year under section 201(e) of the Immigration and Nationality Act [
"(2) In no case shall the reduction under paragraph (1) for a fiscal year exceed the amount by which—
"(A) the sum of—
"(i) one-half of the total number of individuals described in subclauses (I), (II), (III), and (IV) of section 309(c)(5)(C)(i) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
"(ii) the total number of individuals described in section 101(a)(27)(D) of the Immigration and Nationality Act (
"(B) the total of the reductions in available visas under this subsection for all previous fiscal years.
"(3)(A) Paragraph (1) shall not apply in a fiscal year following a fiscal year for which the sum calculated under paragraph (2)(A), minus the number in paragraph (2)(B), is zero.
"(B) Nothing in this paragraph may be construed—
"(i) to repeal, modify, or render permanently inapplicable paragraph (1); or
"(ii) to prevent the offsetting of the number of visas described in that paragraph for the purpose of providing visa availability for aliens described in section 5104 of the National Defense Authorization Act for Fiscal Year 2024 [
"(4) In the event that the number of visas available for a fiscal year under section 201(e) of the Immigration and Nationality Act (
Transition Relating to Death of Citizen Spouse
Inapplicability of Numerical Limitations for Certain Aliens Residing in the United States Virgin Islands
The numerical limitations described in subsec. (a) of this section not to apply in the case of certain aliens residing in the Virgin Islands seeking adjustment of their status to permanent resident alien status, and such adjustment of status not to result in any reduction in the number of aliens who may acquire the status of aliens lawfully admitted to the United States for permanent residence under this chapter, see section 2(c)(1) of
Exemption From Numerical Limitations for Certain Aliens Who Applied for Adjustment to Status of Permanent Resident Aliens on or Before June 1, 1978
"(1) qualified as a nonpreference immigrant under section 203(a)(8) of such Act [
"(2) was determined to be exempt from the labor certification requirement of section 212(a)(14) of such Act [former
"(3) applied for adjustment of status to that of an alien lawfully admitted for permanent residence."
Select Commission on Immigration and Refugee Policy
Select Commission on Western Hemisphere Immigration
Termination of Quota Deductions
§1151a. Repealed. Pub. L. 94–571, §7(g), Oct. 20, 1976, 90 Stat. 2706
Section,
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective on first day of first month which begins more than 60 days after Oct. 20, 1976, see section 10 of
§1152. Numerical limitations on individual foreign states
(a) Per country level
(1) Nondiscrimination
(A) Except as specifically provided in paragraph (2) and in
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.
(2) Per country levels for family-sponsored and employment-based immigrants
Subject to paragraphs (3), (4), and (5), the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of
(3) Exception if additional visas available
If because of the application of paragraph (2) with respect to one or more foreign states or dependent areas, the total number of visas available under both subsections (a) and (b) of
(4) Special rules for spouses and children of lawful permanent resident aliens
(A) 75 percent of 2nd preference set-aside for spouses and children not subject to per country limitation
(i) In general
Of the visa numbers made available under
(ii) "2–A floor" defined
In this paragraph, the term "2–A floor" means, for a fiscal year, 77 percent of the total number of visas made available under
(B) Treatment of remaining 25 percent for countries subject to subsection (e)
(i) In general
Of the visa numbers made available under
(ii) "Subsection (e) ceiling" defined
In clause (i), the term "subsection (e) ceiling" means, for a foreign state or dependent area, 77 percent of the maximum number of visas that may be made available under
(C) Treatment of unmarried sons and daughters in countries subject to subsection (e)
In the case of a foreign state or dependent area to which subsection (e) applies, the number of immigrant visas that may be made available to natives of the state or area under
(i) 23 percent of the maximum number of visas that may be made available under
(ii) the number (if any) by which the maximum number of visas that may be made available under
whichever is greater.
(D) Limiting pass down for certain countries subject to subsection (e)
In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under
(5) Rules for employment-based immigrants
(A) Employment-based immigrants not subject to per country limitation if additional visas available
If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of
(B) Limiting fall across for certain countries subject to subsection (e)
In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under
(b) Rules for chargeability
Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. For the purposes of this chapter the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that (1) an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year; (2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year; (3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and (4) an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien's birth may be charged to the foreign state of either parent.
(c) Chargeability for dependent areas
Any immigrant born in a colony or other component or dependent area of a foreign state overseas from the foreign state, other than an alien described in
(d) Changes in territory
In the case of any change in the territorial limits of foreign states, the Secretary of State shall, upon recognition of such change issue appropriate instructions to all diplomatic and consular offices.
(e) Special rules for countries at ceiling
If it is determined that the total number of immigrant visas made available under subsections (a) and (b) of
(1) the ratio of the visa numbers made available under
(2) except as provided in subsection (a)(4), the proportion of the visa numbers made available under each of paragraphs (1) through (4) of
(3) except as provided in subsection (a)(5), the proportion of the visa numbers made available under each of paragraphs (1) through (5) of
Nothing in this subsection shall be construed as limiting the number of visas that may be issued to natives of a foreign state or dependent area under
(June 27, 1952, ch. 477, title II, ch. 1, §202,
Editorial Notes
References in Text
This chapter, referred to in subsec. (b), was in the original, "this Act", meaning act June 27, 1952, ch. 477,
Amendments
2000—Subsec. (a)(2).
Subsec. (a)(5).
Subsec. (e)(3).
1996—Subsec. (a)(1).
1991—Subsec. (a)(4)(A).
1990—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1988—Subsec. (b).
Subsec. (c).
Subsec. (e).
1986—Subsec. (b).
Subsec. (c).
Subsec. (e).
1981—Subsec. (a).
Subsec. (b).
1980—Subsec. (a).
Subsec. (e).
1978—Subsec. (c).
1976—Subsec. (a).
Subsec. (c).
Subsec. (e).
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1961—Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 1991 Amendment
Amendment by
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by section 8(c) of
Effective Date of 1986 Amendments
Amendment by
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Treatment of Hong Kong Under Per Country Levels
[Section 103 of
Inapplicability of Numerical Limitations for Certain Aliens Residing in the United States Virgin Islands
The numerical limitations described in text not to apply in the case of certain aliens residing in the Virgin Islands seeking adjustment of their status to permanent resident alien status, and such adjustment of status not to result in any reduction in the number of aliens who may acquire the status of aliens lawfully admitted to the United States for permanent residence under this chapter, see section 2(c)(1) of
Exemption From Numerical Limitations for Certain Aliens Who Applied for Adjustment to Status of Permanent Resident Aliens on or Before June 1, 1978
For provisions rendering inapplicable the numerical limitations contained in this section to certain aliens who had applied for adjustment to the status of permanent resident alien on or before June 1, 1978, see section 19 of
Approval by Secretary of State Treating Taiwan (China) as Separate Foreign State for Purposes of Numerical Limitation on Immigrant Visas
§1153. Allocation of immigrant visas
(a) Preference allocation for family-sponsored immigrants
Aliens subject to the worldwide level specified in
(1) Unmarried sons and daughters of citizens
Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400, plus any visas not required for the class specified in paragraph (4).
(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens
Qualified immigrants—
(A) who are the spouses or children of an alien lawfully admitted for permanent residence, or
(B) who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence,
shall be allocated visas in a number not to exceed 114,200, plus the number (if any) by which such worldwide level exceeds 226,000, plus any visas not required for the class specified in paragraph (1); except that not less than 77 percent of such visa numbers shall be allocated to aliens described in subparagraph (A).
(3) Married sons and married daughters of citizens
Qualified immigrants who are the married sons or married daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400, plus any visas not required for the classes specified in paragraphs (1) and (2).
(4) Brothers and sisters of citizens
Qualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas in a number not to exceed 65,000, plus any visas not required for the classes specified in paragraphs (1) through (3).
(b) Preference allocation for employment-based immigrants
Aliens subject to the worldwide level specified in
(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, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver of job offer
(i) National interest waiver
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) Physicians working in shortage areas or veterans facilities
(I) In general
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) Prohibition
No permanent resident visa may be issued to an alien physician described in subclause (I) by the Secretary of State under
(III) Statutory construction
Nothing in this subparagraph may be construed to prevent the filing of a petition with the Attorney General for classification under
(IV) Effective date
The requirements of this subsection do not affect waivers on behalf of alien physicians approved under subsection (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 subsection (b)(2)(B) prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to subsection (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
(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
(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
(5) Employment creation
(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 enterprise (including a limited partnership)—
(i) in which such alien has invested (after November 29, 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C) and which is expected to remain invested for not less than 2 years; and
(ii) which will benefit the United States economy by creating full-time employment for not fewer than 10 United States citizens, United States nationals, 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) Designations and reserved visas
(i) Reserved visas
(I) In general
Of the visas made available under this paragraph in each fiscal year—
(aa) 20 percent shall be reserved for qualified immigrants who invest in a rural area;
(bb) 10 percent shall be reserved for qualified immigrants who invest in an area designated by the Secretary of Homeland Security under clause (ii) as a high unemployment area; and
(cc) 2 percent shall be reserved for qualified immigrants who invest in infrastructure projects.
(II) Unused visas
(aa) Carryover
At the end of each fiscal year, any unused visas reserved for qualified immigrants investing in each of the categories described in items (aa) through (cc) of subclause (I) shall remain available within the same category for the immediately succeeding fiscal year.
(bb) General availability
Visas described in items (aa) through (cc) of subclause (I) that are not issued by the end of the succeeding fiscal year referred to in item (aa) shall be made available to qualified immigrants described under subparagraph (A).
(ii) Designation of high unemployment area
(I) In general
The Secretary of Homeland Security, or a designee of the Secretary who is an employee of the Department of Homeland Security, may designate, as a high unemployment area, a census tract, or contiguous census tracts, in which—
(aa) the new commercial enterprise is principally doing business; and
(bb) the weighted average of the unemployment rate for the census tracts, based on the labor force employment measure for each applicable census tract and any adjacent tract included under subclause (III), is not less than 150 percent of the national average unemployment rate.
(II) Prohibition on designation by any other official
A targeted employment area may not be designated as a high unemployment area by—
(aa) a Federal official other than the Secretary of Homeland Security or a designee of the Secretary; or
(bb) any official of a State or local government.
(III) Inclusion
In making a designation under subclause (I), the Secretary of Homeland Security may include a census tract directly adjacent to a census tract or contiguous census tracts described in that subclause.
(IV) Duration
(aa) In general
A designation under this clause shall be in effect for the 2-year period beginning on—
(AA) the date on which an application under subparagraph (F) is filed; or
(BB) in the case of an alien who is not subject to subparagraph (F), at the time of investment.
(bb) Renewal
A designation under this clause may be renewed for 1 or more additional 2-year periods if the applicable area continues to meet the criteria described in subclause (I).
(V) Additional investment not required
An immigrant investor who has invested the amount of capital required by subparagraph (C) in a targeted employment area designated as a high unemployment area during the period in which the area is so designated shall not be required to increase the amount of investment due to the expiration of the designation.
(iii) Infrastructure projects
(I) In general
The Secretary of Homeland Security shall determine whether a specific capital investment project meets the definition of "infrastructure project" set forth in subparagraph (D)(iv).
(II) Prohibition on designation by any other official
A determination under subclause (I) may not be made by—
(aa) a Federal official other than the Secretary of Homeland Security or a designee of the Secretary; or
(bb) any official of a State or local government.
(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 $1,050,000.
(ii) Adjustment for targeted employment areas and infrastructure projects
The amount of capital required under subparagraph (A) for an investment in a targeted employment area or in an infrastructure project shall be $800,000.
(iii) Automatic adjustment in minimum investment amount
(I)
(II) Beginning on January 1, 2027, and every 5 years thereafter, the amount in clause (ii) shall automatically adjust for petitions filed on or after the effective date of each adjustment, to be equal to 75 percent of the standard investment amount under subclause (I).
(iv) 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 Secretary of Homeland Security 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), as adjusted under clause (iii).
(D) Definitions
In this paragraph:
(i) Affiliated job-creating entity
The term "affiliated job-creating entity" means any job-creating entity that is controlled, managed, or owned by any of the people involved with the regional center or new commercial enterprise under subsection (b)(5)(H)(v).
(ii) Capital
The term "capital"—
(I) means cash and all real, personal, or mixed tangible assets owned and controlled by the alien investor, or held in trust for the benefit of the alien and to which the alien has unrestricted access;
(II) shall be valued at fair market value in United States dollars, in accordance with Generally Accepted Accounting Principles or other standard accounting practice adopted by the Securities and Exchange Commission, at the time it is invested under this paragraph;
(III) does not include—
(aa) assets directly or indirectly acquired by unlawful means, including any cash proceeds of indebtedness secured by such assets;
(bb) capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien investor and the new commercial enterprise;
(cc) capital invested with a guaranteed rate of return on the amount invested by the alien investor; or
(dd) except as provided in subclause (IV), capital invested that is subject to any agreement between the alien investor and the new commercial enterprise that provides the investor with a contractual right to repayment, such as a mandatory redemption at a certain time or upon the occurrence of a certain event, or a put or sell-back option held by the alien investor, even if such contractual right is contingent on the success of the new commercial enterprise, such as having sufficient available cash flow; and
(IV) includes capital invested that—
(aa) is subject to a buy back option that may be exercised solely at the discretion of the new commercial enterprise; and
(bb) results in the alien investor withdrawing his or her petition unless the alien investor has fulfilled his or her sustainment period and other requirements under this paragraph.
(iii) Certifier
The term "certifier" means a person in a position of substantive authority for the management or operations of a regional center, new commercial enterprise, affiliated job-creating entity, or issuer of securities, such as a principal executive officer or principal financial officer, with knowledge of such entities' policies and procedures related to compliance with the requirements under this paragraph.
(iv) Infrastructure project
The term "infrastructure project" means a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a Federal, State, or local agency or authority) that is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the regional center program described in subparagraph (E) from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project.
(v) Job-creating entity
The term "job-creating entity" means any organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), corporation, limited liability company, business trust, or other entity, which may be publicly or privately owned, including an entity consisting of a holding company and its wholly owned subsidiaries or affiliates (provided that each subsidiary or affiliate is engaged in an activity formed for the ongoing conduct of a lawful business) that receives, or is established to receive, capital investment from alien investors or a new commercial enterprise under the regional center program described in this subparagraph and which is responsible for creating jobs to satisfy the requirement under subparagraph (A)(ii).
(vi) New commercial enterprise
The term "new commercial enterprise" means any for-profit organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business), joint venture, corporation, business trust, limited liability company, or other entity (which may be publicly or privately owned) that receives, or is established to receive, capital investment from investors under this paragraph.
(vii) Rural area
The term "rural area" means any area other than an area within a metropolitan statistical area (as designated by the Director of the Office of Management and Budget) 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).
(viii) Targeted employment area
The term "targeted employment area" means, at the time of investment, a rural area or an area designated by the Secretary of Homeland Security under subparagraph (B)(ii) as a high unemployment area.
(E) Regional center program
(i) In general
Visas under this subparagraph shall be made available through September 30, 2027, to qualified immigrants (and the eligible spouses and children of such immigrants) pooling their investments with 1 or more qualified immigrants participating in a program implementing this paragraph that involves a regional center in the United States, which has been designated by the Secretary of Homeland Security on the basis of a proposal for the promotion of economic growth, including prospective job creation and increased domestic capital investment.
(ii) Processing
In processing petitions under
(I) shall prioritize the processing and adjudication of petitions for rural areas;
(II) may process petitions in a manner and order established by the Secretary; and
(III) shall deem such petitions to include records previously filed with the Secretary pursuant to subparagraph (F) if the alien petitioner certifies that such records are incorporated by reference into the alien's petition.
(iii) Establishment of a regional center
A regional center shall operate within a defined, contiguous, and limited geographic area, which shall be described in the proposal and be consistent with the purpose of concentrating pooled investment within such area. The proposal to establish a regional center shall demonstrate that the pooled investment will have a substantive economic impact on such geographic area, and shall include—
(I) reasonable predictions, supported by economically and statistically valid and transparent forecasting tools, concerning the amount of investment that will be pooled, the kinds of commercial enterprises that will receive such investments, details of the jobs that will be created directly or indirectly as a result of such investments, and other positive economic effects such investments will have;
(II) a description of the policies and procedures in place reasonably designed to monitor new commercial enterprises and any associated job-creating entity to seek to ensure compliance with—
(aa) all applicable laws, regulations, and Executive orders of the United States, including immigration laws, criminal laws, and securities laws; and
(bb) all securities laws of each State in which securities offerings will be conducted, investment advice will be rendered, or the offerors or offerees reside;
(III) attestations and information confirming that all persons involved with the regional center meet the requirements under clauses (i) and (ii) of subparagraph (H);
(IV) a description of the policies and procedures in place that are reasonably designed to ensure program compliance; and
(V) the identities of all natural persons involved in the regional center, as described in subparagraph (H)(v).
(iv) Indirect job creation
(I) In general
The Secretary of Homeland Security shall permit aliens seeking admission under this subparagraph to satisfy only up to 90 percent of the requirement under subparagraph (A)(ii) with jobs that are estimated to be created indirectly through investment under this paragraph in accordance with this subparagraph. An employee of the new commercial enterprise or job-creating entity may be considered to hold a job that has been directly created.
(II) Construction activity lasting less than 2 years
If the jobs estimated to be created are created by construction activity lasting less than 2 years, the Secretary shall permit aliens seeking admission under this subparagraph to satisfy only up to 75 percent of the requirement under subparagraph (A)(ii) with jobs that are estimated to be created indirectly through investment under this paragraph in accordance with this subparagraph.
(v) Compliance
(I) In general
In determining compliance with subparagraph (A)(ii), the Secretary of Homeland Security shall permit aliens seeking admission under this subparagraph to rely on economically and statistically valid methodologies for determining the number of jobs created by the program, including—
(aa) jobs estimated to have been created directly, which may be verified using such methodologies; and
(bb) consistent with this subparagraph, jobs estimated to have been directly or indirectly created through capital expenditures, revenues generated from increased exports, improved regional productivity, job creation, and increased domestic capital investment resulting from the program.
(II) Job and investment requirements
(aa) Relocated jobs
In determining compliance with the job creation requirement under subparagraph (A)(ii), the Secretary of Homeland Security may include jobs estimated to be created under a methodology that attributes jobs to prospective tenants occupying commercial real estate created or improved by capital investments if the number of such jobs estimated to be created has been determined by an economically and statistically valid methodology and such jobs are not existing jobs that have been relocated.
(bb) Publicly available bonds
The Secretary of Homeland Security shall prescribe regulations to ensure that alien investor capital may not be utilized, by a new commercial enterprise or otherwise, to purchase municipal bonds or any other bonds, if such bonds are available to the general public, either as part of a primary offering or from a secondary market.
(cc) Construction activity jobs
If the number of direct jobs estimated to be created has been determined by an economically and statistically valid methodology, and such direct jobs are created by construction activity lasting less than 2 years, the number of such jobs that may be considered direct jobs for purposes of clause (iv) shall be calculated by multiplying the total number of such jobs estimated to be created by the fraction of the 2-year period that the construction activity lasts.
(vi) Amendments
The Secretary of Homeland Security shall—
(I) require a regional center—
(aa) to notify the Secretary, not later than 120 days before the implementation of significant proposed changes to its organizational structure, ownership, or administration, including the sale of such center, or other arrangements which would result in individuals not previously subject to the requirements under subparagraph (H) becoming involved with the regional center; or
(bb) if exigent circumstances are present, to provide the notice described in item (aa) to the Secretary not later than 5 business days after a change described in such item; and
(II) adjudicate business plans under subparagraph (F) and petitions under
(vii) Record keeping and audits
(I) Record keeping
Each regional center shall make and preserve, during the 5-year period beginning on the last day of the Federal fiscal year in which any transactions occurred, books, ledgers, records, and other documentation from the regional center, new commercial enterprise, or job-creating entity used to support—
(aa) any claims, evidence, or certifications contained in the regional center's annual statements under subparagraph (G); and
(bb) associated petitions by aliens seeking classification under this section or removal of conditions under
(II) Audits
The Secretary shall audit each regional center not less frequently than once every 5 years. Each such audit shall include a review of any documentation required to be maintained under subclause (I) for the preceding 5 years and a review of the flow of alien investor capital into any capital investment project. To the extent multiple regional centers are located at a single site, the Secretary may audit multiple regional centers in a single site visit.
(III) Termination
The Secretary shall terminate the designation of a regional center that fails to consent to an audit under subclause (II) or deliberately attempts to impede such an audit.
(F) Business plans for regional center investments
(i) Application for approval of an investment in a commercial enterprise
A regional center shall file an application with the Secretary of Homeland Security for each particular investment offering through an associated new commercial enterprise before any alien files a petition for classification under this paragraph by reason of investment in that offering. The application shall include—
(I) a comprehensive business plan for a specific capital investment project;
(II) a credible economic analysis regarding estimated job creation that is based upon economically and statistically valid and transparent methodologies;
(III) any documents filed with the Securities and Exchange Commission under the Securities Act of 1933 (
(IV) any investment and offering documents, including subscription, investment, partnership, and operating agreements, private placement memoranda, term sheets, biographies of management, officers, directors, and any person with similar responsibilities, the description of the business plan to be provided to potential alien investors, and marketing materials used, or drafts prepared for use, in connection with the offering, which shall contain references, as appropriate, to—
(aa) all material investment risks associated with the new commercial enterprise and the job-creating entity;
(bb) any conflicts of interest that currently exist or may arise among the regional center, the new commercial enterprise, the job-creating entity, or the principals, attorneys, or individuals responsible for recruitment or promotion of such entities;
(cc) any pending material litigation or bankruptcy, or material adverse judgments or bankruptcy orders issued during the most recent 10-year period, in the United States or in another country, affecting the regional center, the new commercial enterprise, any associated job-creating entity, or any other enterprise in which any principal of any of the aforementioned entities held majority ownership at the time; and
(dd)(AA) any fees, ongoing interest, or other compensation paid, or to be paid by the regional center, the new commercial enterprise, or any issuer of securities intended to be offered to alien investors, to agents, finders, or broker dealers involved in the offering of securities to alien investors in connection with the investment;
(BB) a description of the services performed, or that will be performed, by such person to entitle the person to such fees, interest, or compensation; and
(CC) the name and contact information of any such person, if known at the time of filing;
(V) a description of the policies and procedures, such as those related to internal and external due diligence, reasonably designed to cause the regional center and any issuer of securities intended to be offered to alien investors in connection with the relevant capital investment project, to comply, as applicable, with the securities laws of the United States and the laws of the applicable States in connection with the offer, purchase, or sale of its securities; and
(VI) a certification from the regional center, and any issuer of securities intended to be offered to alien investors in connection with the relevant capital investment project, that their respective agents and employees, and any parties associated with the regional center and such issuer of securities affiliated with the regional center are in compliance with the securities laws of the United States and the laws of the applicable States in connection with the offer, purchase, or sale of its securities, to the best of the certifier's knowledge, after a due diligence investigation.
(ii) Effect of approval of a business plan for an investment in a regional center's commercial enterprise
The approval of an application under this subparagraph, including an approval before the date of the enactment of this subparagraph, shall be binding for purposes of the adjudication of subsequent petitions seeking classification under this paragraph by immigrants investing in the same offering described in such application, and of petitions by the same immigrants filed under
(I) the applicant engaged in fraud, misrepresentation, or criminal misuse;
(II) such approval would threaten public safety or national security;
(III) there has been a material change that affects eligibility;
(IV) the discovery of other evidence affecting program eligibility was not disclosed by the applicant during the adjudication process; or
(V) the previous adjudication involved a material mistake of law or fact.
(iii) Amendments
(I) Approval
The Secretary of Homeland Security may establish procedures by which a regional center may seek approval of an amendment to an approved application under this subparagraph that reflects changes specified by the Secretary to any information, documents, or other aspects of the investment offering described in such approved application not later than 30 days after any such changes.
(II) Incorporation
Upon the approval of a timely filed amendment to an approved application, any changes reflected in such amendment may be incorporated into and considered in determining program eligibility through adjudication of—
(aa) pending petitions from immigrants investing in the offering described in the approved application who are seeking classification under this paragraph; and
(bb) petitions by immigrants described in item (aa) that are filed under
(iv) Site visits
The Secretary of Homeland Security shall—
(I) perform site visits to regional centers not earlier than 24 hours after providing notice of such site visit; and
(II) perform at least 1 site visit to, as applicable, each new commercial enterprise or job-creating entity, or the business locations where any jobs that are claimed as being created.
(v) Parameters for capital redeployment
(I) In general
The Secretary of Homeland Security shall prescribe regulations, in accordance with subchapter II of
(aa) the new commercial enterprise has executed the business plan for a capital investment project in good faith without a material change;
(bb) the new commercial enterprise has created a sufficient number of new full time positions to satisfy the job creation requirements of the program for all investors in the new commercial enterprise, either directly or indirectly, as evidenced by the methodologies set forth in this chapter;
(cc) the job creating entity has repaid the capital initially deployed in conformity with the initial investment contemplated by the business plan; and
(dd) the capital, after repayment by the job creating entity, remains at risk and it is not redeployed in passive investments, such as stocks or bonds.
(II) Termination
The Secretary of Homeland Security shall terminate the designation of a regional center if the Secretary determines that a new commercial enterprise has violated any of the requirements under subclause (I) in the redeployment of funds invested in such regional center.
(G) Regional center annual statements
(i) In general
Each regional center designated under subparagraph (E) shall submit an annual statement, in a manner prescribed by the Secretary of Homeland Security. Each such statement shall include—
(I) a certification stating that, to the best of the certifier's knowledge, after a due diligence investigation, the regional center is in compliance with clauses (i) and (ii) of subparagraph (H);
(II) a certification described in subparagraph (I)(ii)(II);
(III) a certification stating that, to the best of the certifier's knowledge, after a due diligence investigation, the regional center is in compliance with subparagraph (K)(iii);
(IV) a description of any pending material litigation or bankruptcy proceedings, or material litigation or bankruptcy proceedings resolved during the preceding fiscal year, involving the regional center, the new commercial enterprise, or any affiliated job-creating entity;
(V) an accounting of all individual alien investor capital invested in the regional center, new commercial enterprise, and job-creating entity;
(VI) for each new commercial enterprise associated with the regional center—
(aa) an accounting of the aggregate capital invested in the new commercial enterprise and any job-creating entity by alien investors under this paragraph for each capital investment project being undertaken by the new commercial enterprise;
(bb) a description of how the capital described in item (aa) is being used to execute each capital investment project in the filed business plan or plans;
(cc) evidence that 100 percent of the capital described in item (aa) has been committed to each capital investment project;
(dd) detailed evidence of the progress made toward the completion of each capital investment project;
(ee) an accounting of the aggregate direct jobs created or preserved;
(ff) to the best of the regional center's knowledge, for all fees, including administrative fees, loan monitoring fees, loan management fees, commissions and similar transaction-based compensation, collected from alien investors by the regional center, the new commercial enterprise, any affiliated job-creating entity, any affiliated issuer of securities intended to be offered to alien investors, or any promoter, finder, broker-dealer, or other entity engaged by any of the aforementioned entities to locate individual investors—
(AA) a description of all fees collected;
(BB) an accounting of the entities that received such fees; and
(CC) the purpose for which such fees were collected;
(gg) any documentation referred to in subparagraph (F)(i)(IV) if there has been a material change during the preceding fiscal year; and
(hh) a certification by the regional center that the information provided under items (aa) through (gg) is accurate, to the best of the certifier's knowledge, after a due diligence investigation; and
(VII) a description of the regional center's policies and procedures that are designed to enable the regional center to comply with applicable Federal labor laws.
(ii) Amendment of annual statements
The Secretary of Homeland Security—
(I) shall require the regional center to amend or supplement an annual statement required under clause (i) if the Secretary determines that such statement is deficient; and
(II) may require the regional center to amend or supplement such annual statement if the Director determines that such an amendment or supplement is appropriate.
(iii) Sanctions
(I) Effect of violation
The Director shall sanction any regional center entity in accordance with subclause (II) if the regional center fails to submit an annual statement or if the Director determines that the regional center—
(aa) knowingly submitted or caused to be submitted a statement, certification, or any information submitted pursuant to this subparagraph that contained an untrue statement of material fact; or
(bb) is conducting itself in a manner inconsistent with its designation under subparagraph (E), including any willful, undisclosed, and material deviation by new commercial enterprises from any filed business plan for such new commercial enterprises.
(II) Authorized sanctions
The Director shall establish a graduated set of sanctions based on the severity of the violations referred to in subclause (I), including—
(aa) fines equal to not more than 10 percent of the total capital invested by alien investors in the regional center's new commercial enterprises or job-creating entities directly involved in such violations, the payment of which shall not in any circumstance utilize any of such alien investors' capital investments, and which shall be deposited into the EB–5 Integrity Fund established under subparagraph (J);
(bb) temporary suspension from participation in the program described in subparagraph (E), which may be lifted by the Director if the individual or entity cures the alleged violation after being provided such an opportunity by the Director;
(cc) permanent bar from participation in the program described in subparagraph (E) for 1 or more individuals or business entities associated with the regional center, new commercial enterprise, or job-creating entity; and
(dd) termination of regional center designation.
(iv) Availability of annual statements to investors
Not later than 30 days after a request from an alien investor, a regional center shall make available to such alien investor a copy of the filed annual statement and any amendments filed to such statement, which shall be redacted to exclude any information unrelated to such alien investor or the new commercial enterprise or job creating entity into which the alien investor invested.
(H) Bona fides of persons involved with regional center program
(i) In general
The Secretary of Homeland Security may not permit any person to be involved with any regional center, new commercial enterprise, or job-creating entity if—
(I) the person has been found to have committed—
(aa) a criminal or civil offense involving fraud or deceit within the previous 10 years;
(bb) a civil offense involving fraud or deceit that resulted in a liability in excess of $1,000,000; or
(cc) a crime for which the person was convicted and sentenced to a term of imprisonment of more than 1 year;
(II) the person is subject to a final order, for the duration of any penalty imposed by such order, of a State securities commission (or an agency or officer of a State performing similar functions), a State authority that supervises or examines banks, savings associations, or credit unions, a State insurance commission (or an agency or officer of a State performing similar functions), an appropriate Federal banking agency, the Commodity Futures Trading Commission, the Securities and Exchange Commission, a financial self-regulatory organization recognized by the Securities and Exchange Commission, or the National Credit Union Administration, which is based on a violation of any law or regulation that—
(aa) prohibits fraudulent, manipulative, or deceptive conduct; or
(bb) bars the person from—
(AA) association with an entity regulated by such commission, authority, agency, or officer;
(BB) appearing before such commission, authority, agency, or officer;
(CC) engaging in the business of securities, insurance, or banking; or
(DD) engaging in savings association or credit union activities;
(III) the Secretary determines that the person is engaged in, has ever been engaged in, or seeks to engage in—
(aa) any illicit trafficking in any controlled substance or in any listed chemical (as defined in
(bb) any activity relating to espionage, sabotage, or theft of intellectual property;
(cc) any activity related to money laundering (as described in
(dd) any terrorist activity (as defined in
(ee) any activity constituting or facilitating human trafficking or a human rights offense;
(ff) any activity described in
(gg) the violation of any statute, regulation, or Executive order regarding foreign financial transactions or foreign asset control; or
(IV) the person—
(aa) is, or during the preceding 10 years has been, included on the Department of Justice's List of Currently Disciplined Practitioners; or
(bb) during the preceding 10 years, has received a reprimand or has otherwise been publicly disciplined for conduct related to fraud or deceit by a State bar association of which the person is or was a member.
(ii) Foreign involvement in regional center program
(I) Lawful status required
A person may not be involved with a regional center unless the person—
(aa) is a national of the United States or an individual who has been lawfully admitted for permanent residence (as such terms are defined in paragraphs (20) and (22) of
(bb) is not the subject of rescission or removal proceedings.
(II) Foreign governments
No agency, official, or other similar entity or representative of a foreign government entity may provide capital to, or be directly or indirectly involved with the ownership or administration of, a regional center, a new commercial enterprise, or a job-creating entity, except that a foreign or domestic investment fund or other investment vehicle that is wholly or partially owned, directly or indirectly, by a bona fide foreign sovereign wealth fund or a foreign state-owned enterprise otherwise permitted to do business in the United States may be involved with the ownership, but not the administration, of a job-creating entity that is not an affiliated job-creating entity.
(III) Rulemaking
Not later than 270 days after March 15, 2022, the Secretary shall issue regulations implementing subparagraphs (I) and (II).
(iii) Information required
The Secretary of Homeland Security—
(I) shall require such attestations and information, including the submission of fingerprints or other biometrics to the Federal Bureau of Investigation with respect to a regional center, a new commercial enterprise, and any affiliated job creating entity, and persons involved with such entities (as described in clause (v)), as may be necessary to determine whether such entities are in compliance with clauses (i) and (ii);
(II) shall perform such criminal record checks and other background and database checks with respect to a regional center, a new commercial enterprise, and any affiliated job-creating entity, and persons involved with such entities (as described in clause (v)), as may be necessary to determine whether such entities are in compliance with clauses (i) and (ii); and
(III) may, at the Secretary's discretion, require the information described to in subclause (I) and may perform the checks described in subclause (II) with respect to any job creating entity and persons involved with such entity if there is a reasonable basis to believe such entity or person is not in compliance with clauses (i) and (ii).
(iv) Termination
(I) In general
The Secretary of Homeland Security may suspend or terminate the designation of any regional center, or the participation under the program of any new commercial enterprise or job-creating entity under this paragraph if the Secretary determines that such entity—
(aa) knowingly involved a person with such entity in violation of clause (i) or (ii) by failing, within 14 days of acquiring such knowledge—
(AA) to take commercially reasonable efforts to discontinue the prohibited person's involvement; or
(BB) to provide notice to the Secretary;
(bb) failed to provide an attestation or information requested by the Secretary under clause (iii)(I); or
(cc) knowingly provided any false attestation or information under clause (iii)(I).
(II) Limitation
The Secretary's authorized sanctions under subclause (I) shall be limited to entities that have engaged in any activity described in subclause (I).
(III) Information
(aa) Notification
The Secretary, after performing the criminal record checks and other background checks described in clause (iii), shall notify a regional center, new commercial enterprise, or job-creating entity whether any person involved with such entities is not in compliance with clause (i) or (ii), unless the information that provides the basis for the determination is classified or disclosure is otherwise prohibited under law.
(bb) Effect of failure to respond
If the regional center, new commercial enterprise, or job-creating entity fails to discontinue the prohibited person's involvement with the regional center, new commercial enterprise, or job-creating entity, as applicable, within 30 days after receiving such notification, such entity shall be deemed to have knowledge under subclause (I)(aa) that the involvement of such person with the entity is in violation of clause (i) or (ii).
(v) Persons involved with a regional center, new commercial enterprise, or job-creating entity
For the purposes of this paragraph, unless otherwise determined by the Secretary of Homeland Security, a person is involved with a regional center, a new commercial enterprise, any affiliated job-creating entity, as applicable, if the person is, directly or indirectly, in a position of substantive authority to make operational or managerial decisions over pooling, securitization, investment, release, acceptance, or control or use of any funding that was procured under the program described in subparagraph (E). An individual may be in a position of substantive authority if the person serves as a principal, a representative, an administrator, an owner, an officer, a board member, a manager, an executive, a general partner, a fiduciary, an agent, or in a similar position at the regional center, new commercial enterprise, or job-creating entity, respectively.
(I) Compliance with securities laws
(i) Jurisdiction
(I) In general
The United States has jurisdiction, including subject matter jurisdiction, over the purchase or sale of any security offered or sold, or any investment advice provided, by any regional center or any party associated with a regional center for purposes of the securities laws.
(II) Compliance with regulation s
For purposes of section 5 of the Securities Act of 1933 (
(III) Savings provision
Subclause (I) is not intended to modify any existing rules or regulations of the Securities and Exchange Commission related to the application of
(ii) Regional center certifications required
(I) Initial certification
The Secretary of Homeland Security may not approve an application for regional center designation or regional center amendment unless the regional center certifies that, to the best of the certifier's knowledge, after a due diligence investigation, the regional center is in compliance with and has policies and procedures, including those related to internal and external due diligence, reasonably designed to confirm, as applicable, that all parties associated with the regional center are and will remain in compliance with the securities laws of the United States and of any State in which—
(aa) the offer, purchase, or sale of securities was conducted;
(bb) the issuer of securities was located; or
(cc) the investment advice was provided by the regional center or parties associated with the regional center.
(II) Reissue
A regional center shall annually reissue a certification described in subclause (I), in accordance with subparagraph (G), to certify compliance with clause (iii) by stating that—
(aa) the certification is made by a certifier;
(bb) to the best of the certifier's knowledge, after a due diligence investigation, all such offers, purchases, and sales of securities or the provision of investment advice complied with the securities laws of the United States and the securities laws of any State in which—
(AA) the offer, purchase, or sale of securities was conducted;
(BB) the issuer of securities was located; or
(CC) the investment advice was provided; and
(cc) records, data, and information related to such offers, purchases, and sales have been maintained.
(III) Effect of noncompliance
If a regional center, through its due diligence, discovered during the previous fiscal year that the regional center or any party associated with the regional center was not in compliance with the securities laws of the United States or the securities laws of any State in which the securities activities were conducted by any party associated with the regional center, the certifier shall—
(aa) describe the activities that led to noncompliance;
(bb) describe the actions taken to remedy the noncompliance; and
(cc) certify that the regional center and all parties associated with the regional center are currently in compliance, to the best of the certifier's knowledge, after a due diligence investigation.
(iii) Oversight required
Each regional center shall—
(I) use commercially reasonable efforts to monitor and supervise compliance with the securities laws in relations to all offers, purchases, and sales of, and investment advice relating to, securities made by parties associated with the regional center;
(II) maintain records, data, and information relating to all such offers, purchases, sales, and investment advice during the 5-year period beginning on the date of their creation; and
(III) make the records, data, and information described in subclause (II) available to the Secretary or to the Securities and Exchange Commission upon request.
(iv) Suspension or termination
In addition to any other authority provided to the Secretary under this paragraph, the Secretary, in the Secretary's discretion, may suspend or terminate the designation of any regional center or impose other sanctions against the regional center if the regional center, or any parties associated with the regional center that the regional center knew or reasonably should have known—
(I) are permanently or temporarily enjoined by order, judgment, or decree of any court of competent jurisdiction in connection with the offer, purchase, or sale of a security or the provision of investment advice;
(II) are subject to any final order of the Securities and Exchange Commission or a State securities regulator that—
(aa) bars such person from association with an entity regulated by the Securities and Exchange Commission or a State securities regulator; or
(bb) constitutes a final order based on a finding of an intentional violation or a violation related to fraud or deceit in connection with the offer, purchase, or sale of, or investment advice relating to, a security; or
(III) submitted, or caused to be submitted, a certification described in clause (ii) that contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
(v) Defined term
In this subparagraph, the term "parties associated with a regional center" means—
(I) the regional center;
(II) any new commercial enterprise or affiliated job-creating entity or issuer of securities associated with the regional center;
(III) the regional center's and new commercial enterprise's owners, officers, directors, managers, partners, agents, employees, promoters and attorneys, or similar position, as determined by the Secretary; and
(IV) any person under the control of the regional center, new commercial enterprise, or issuer of securities associated with the regional center who is responsible for the marketing, offering, or sale of any security offered in connection with the capital investment project.
(vi) Savings provision
Nothing in this subparagraph may be construed to impair or limit the authority of the Securities and Exchange Commission under the Federal securities laws or any State securities regulator under State securities laws.
(J) EB–5 Integrity Fund
(i) Establishment
There is established in the United States Treasury a special fund, which shall be known as the "EB–5 Integrity Fund" (referred to in this subparagraph as the "Fund"). Amounts deposited into the Fund shall be available to the Secretary of Homeland Security until expended for the purposes set forth in clause (iii).
(ii) Fees
(I) Annual fee
On October 1, 2022, and each October 1 thereafter, the Secretary of Homeland Security shall collect for the Fund an annual fee—
(aa) except as provided in item (bb), of $20,000 from each regional center designated under subparagraph (E); and
(bb) of $10,000 from each such regional center with 20 or fewer total investors in the preceding fiscal year in its new commercial enterprises.
(II) Petition fee
Beginning on October 1, 2022, the Secretary shall collect a fee of $1,000 for the Fund with each petition filed under
(III) Increases
The Secretary may increase the amounts under this clause by prescribing such regulations as may be necessary to ensure that amounts in the Fund are sufficient to carry out the purposes set forth in clause (iii).
(iii) Permissible uses of fund
The Secretary shall—
(I) use not less than 1/3 of the amounts deposited into the Fund for investigations based outside of the United States, including—
(aa) monitoring and investigating program-related events and promotional activities; and
(bb) ensuring an alien investor's compliance with subparagraph (L); and
(II) use amounts deposited into the Fund—
(aa) to detect and investigate fraud or other crimes;
(bb) to determine whether regional centers, new commercial enterprises, job-creating entities, and alien investors (and their alien spouses and alien children) comply with the immigration laws;
(cc) to conduct audits and site visits; and
(dd) as the Secretary determines to be necessary, including monitoring compliance with the requirements under
(iv) Failure to pay fee
The Secretary of Homeland Security shall—
(I) impose a reasonable penalty, which shall be deposited into the Fund, if any regional center does not pay the fee required under clause (ii) within 30 days after the date on which such fee is due; and
(II) terminate the designation of any regional center that does not pay the fee required under clause (ii) within 90 days after the date on which such fee is due.
(v) Report
The Secretary shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes how amounts in the Fund were expended during the previous fiscal year.
(K) Direct and third-party promoters
(i) Rules and standards
Direct and third-party promoters (including migration agents) of a regional center, any new commercial enterprise, an affiliated job-creating entity, or an issuer of securities intended to be offered to alien investors in connection with a particular capital investment project shall comply with the rules and standards prescribed by the Secretary of Homeland Security and any applicable Federal or State securities laws, to oversee promotion of any offering of securities related to the EB–5 Program, including—
(I) registration with U.S. Citizenship and Immigration Services, which—
(aa) includes identifying and contact information for such promoter and confirmation of the existence of the written agreement required under clause (iii); and
(bb) may be made publicly available at the discretion of the Secretary;
(II) certification by each promoter that such promoter is not ineligible under subparagraph (H)(i);
(III) guidelines for accurately representing the visa process to foreign investors; and
(IV) guidelines describing permissible fee arrangements under applicable securities and immigration laws.
(ii) Effect of violation
If the Secretary determines that a direct or third-party promoter has violated clause (i), the Secretary shall suspend or permanently bar such individual from participation in the program described in subparagraph (E).
(iii) Compliance
Each regional center, new commercial enterprise, and affiliated job-creating entity shall maintain a written agreement between or among such entities and each direct or third-party promoter operating on behalf of such entities that outlines the rules and standards prescribed under clause (i).
(iv) Disclosure
Each petition filed under
(L) Source of funds
(i) In general
An alien investor shall demonstrate that the capital required under subparagraph (A) and any funds used to pay administrative costs and fees associated with the alien's investment were obtained from a lawful source and through lawful means.
(ii) Required information
The Secretary of Homeland Security shall require that an alien investor's petition under this paragraph contain, as applicable—
(I) business and tax records, or similar records, including—
(aa) foreign business registration records;
(bb) corporate or partnership tax returns (or tax returns of any other entity in any form filed in any country or subdivision of such country), and personal tax returns, including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind, filed during the past 7 years (or another period to be determined by the Secretary to ensure that the investment is obtained from a lawful source of funds) with any taxing jurisdiction within or outside the United States by or on behalf of the alien investor; and
(cc) any other evidence identifying any other source of capital or administrative fees;
(II) evidence related to monetary judgments against the alien investor, including certified copies of any judgments, and evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving possible monetary judgments against the alien investor from any court within or outside the United States; and
(III) the identity of all persons who transfer into the United States, on behalf of the investor, any funds that are used to meet the capital requirement under subparagraph (A).
(iii) Gift and loan restrictions
(I) In general
Gifted and borrowed funds may not be counted toward the minimum capital investment requirement under subparagraph (C) unless such funds—
(aa) were gifted or loaned to the alien investor in good faith; and
(bb) were not gifted or loaned to circumvent any limitations imposed on permissible sources of capital under this subparagraph, including but not limited to proceeds from illegal activity.
(II) Records requirement
If funds invested under subparagraph (A) are gifted or loaned to the alien investor, the Secretary shall require that the alien investor's petition under this paragraph includes the records described in subclauses (I) and (II) of clause (ii) from the donor or, if other than a bank, the lender.
(M) Treatment of good faith investors following program noncompliance
(i) Termination or debarment of EB–5 entity
Except as provided in clause (vi), upon the termination or debarment, as applicable, from the program under this paragraph of a regional center, a new commercial enterprise, or a job-creating entity—
(I) an otherwise qualified petition under
(II) the Secretary of Homeland Security shall notify the alien beneficiaries of such petitions of such termination or debarment.
(ii) New regional center or investment
The petition under
(I) in the case of the termination of a regional center—
(aa) the new commercial enterprise associates with an approved regional center, regardless of the approved geographical boundaries of such regional center's designation; or
(bb) such alien makes a qualifying investment in another new commercial enterprise; or
(II) in the case of the debarment of a new commercial enterprise or job-creating entity, such alien—
(aa) associates with a new commercial enterprise in good standing; and
(bb) invests additional investment capital solely to the extent necessary to satisfy remaining job creation requirements under subparagraph (A)(ii).
(iii) Amendments
(I) Filing requirement
The Secretary shall permit a petition described in clause (i)(I) to be amended to allow such petition to meet the applicable eligibility requirements under clause (ii), or to notify the Secretary that a pending or approved petition continues to meet the eligibility requirements described in clause (ii) notwithstanding termination or debarment described in clause (i) if such amendment is filed not later than 180 days after the Secretary provides notification of termination or debarment of a regional center, a new commercial enterprise, or a job-creating entity, as applicable.
(II) Determination of eligibility
For purposes of determining eligibility under subclause (I)—
(aa) the Secretary shall permit amendments to the business plan, without such facts underlying the amendment being deemed a material change; and
(bb) may deem any funds obtained or recovered by an alien investor, directly or indirectly, from claims against third parties, including insurance proceeds, or any additional investment capital provided by the alien, to be such alien's investment capital for the purposes of subparagraph (A) if such investment otherwise complies with the requirements under this paragraph and
(iv) Removal of conditions
Aliens described in subclauses (I)(bb) and (II) of clause (ii) shall be eligible to have their conditions removed pursuant to
(v) Remedies
For petitions approved under clause (ii), including following an amendment filed under clause (iii), the Secretary—
(I) shall retain the immigrant visa priority date related to the original petition and prevent age-out of derivative beneficiaries; and
(II) may hold such petition in abeyance and extend any applicable deadlines under this paragraph.
(vi) Exception
If the Secretary has reason to believe that an alien was a knowing participant in the conduct that led to the termination of a regional center, new commercial enterprise, or job-creating entity described in clause (i)—
(I) the alien shall not be accorded any benefit under this subparagraph; and
(II) the Secretary shall—
(aa) notify the alien of such belief; and
(bb) subject to
(N) Threats to the national interest
(i) Denial or revocation
The Secretary of Homeland Security shall deny or revoke the approval of a petition, application, or benefit described in this paragraph, including the documents described in clause (ii), if the Secretary determines, in the Secretary's discretion, that the approval of such petition, application, or benefit is contrary to the national interest of the United States for reasons relating to threats to public safety or national security.
(ii) Documents
The documents described in this clause are—
(I) a certification, designation, or amendment to the designation of a regional center;
(II) a petition seeking classification of an alien as an alien investor under this paragraph;
(III) a petition to remove conditions under
(IV) an application for approval of a business plan in a new commercial enterprise under subparagraph (F); or
(V) a document evidencing conditional permanent resident status that was issued to an alien pursuant to
(iii) Debarment
If a regional center, new commercial enterprise, or job-creating entity has its designation or participation in the program under this paragraph terminated for reasons relating to public safety or national security, any person associated with such regional center, new commercial enterprise, or job-creating entity, including an alien investor, shall be permanently barred from future participation in the program under this paragraph if the Secretary of Homeland Security, in the Secretary's discretion, determines, by a preponderance of the evidence, that such person was a knowing participant in the conduct that led to the termination.
(iv) Notice
If the Secretary of Homeland Security determines that the approval of a petition, application, or benefit described in this paragraph should be denied or revoked pursuant to clause (i), the Secretary shall—
(I) notify the relevant individual, regional center, or commercial entity of such determination;
(II) deny or revoke such petition, application, or benefit or terminate the permanent resident status of the alien (and the alien spouse and alien children of such immigrant), as of the date of such determination; and
(III) provide any United States-owned regional center, new commercial enterprise, or job creating entity an explanation for such determination unless the relevant information is classified or disclosure is otherwise prohibited under law.
(v) Judicial review
Notwithstanding any other provision of law (statutory or nonstatutory), including
(O) Fraud, misrepresentation, and criminal misuse
(i) Denial or revocation
Subject to subparagraph (M), the Secretary of Homeland Security shall deny or revoke the approval of a petition, application, or benefit described in this paragraph, including the documents described in subparagraph (N)(ii), if the Secretary determines, in the Secretary's discretion, that such petition, application, or benefit was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse.
(ii) Debarment
If a regional center, new commercial enterprise, or job-creating entity has its designation or participation in the program under this paragraph terminated for reasons relating to fraud, intentional material misrepresentation, or criminal misuse, any person associated with such regional center, new commercial enterprise, or job-creating entity, including an alien investor, shall be permanently barred from future participation in the program if the Secretary determines, in the Secretary's discretion, by a preponderance of the evidence, that such person was a knowing participant in the conduct that led to the termination.
(iii) Notice
If the Secretary determines that the approval of a petition, application, or benefit described in this paragraph should be denied or revoked pursuant to clause (i), the Secretary shall—
(I) notify the relevant individual, regional center, or commercial entity of such determination; and
(II) deny or revoke such petition, application, or benefit or terminate the permanent resident status of the alien (and the alien spouse and alien children of such immigrant), in accordance with clause (i), as of the date of such determination.
(P) Administrative appellate review
(i) In general
The Director of U.S. Citizenship and Immigration Services shall provide an opportunity for an administrative appellate review by the Administrative Appeals Office of U.S. Citizenship and Immigration Services of any determination made under this paragraph, including—
(I) an application for regional center designation or regional center amendment;
(II) an application for approval of a business plan filed under subparagraph (F);
(III) a petition by an alien investor for status as an immigrant under this paragraph;
(IV) the termination or suspension of any benefit accorded under this paragraph; and
(V) any sanction imposed by the Secretary under this paragraph.
(ii) Judicial review
Subject to subparagraph (N)(v) and
(Q) Fund administration
(i) In general
Each new commercial enterprise shall deposit and maintain the capital investment of each alien investor in a separate account, including amounts held in escrow.
(ii) Use of funds
Amounts in a separate account may only—
(I) be transferred to another separate account or a job creating entity;
(II) otherwise be deployed into the capital investment project for which the funds were intended; or
(III) be transferred to the alien investor who contributed the funds as a refund of that investor's capital investment, if otherwise permitted under this paragraph.
(iii) Deployment of funds into an affiliated job-creating entity
If amounts are transferred to an affiliated job-creating entity pursuant to clause (ii)(I)—
(I) the affiliated job-creating entity shall maintain such amounts in a separate account until they are deployed into the capital investment project for which they were intended; and
(II) not later than 30 days after such amounts are deployed pursuant to subclause (I), the affiliated job-creating entity shall provide written notice to the fund administrator retained pursuant to clause (iv) that a construction consultant or other individual authorized by the Secretary has verified that such amounts have been deployed into the project.
(iv) Fund administrator
Except as provided in clause (v), the new commercial enterprise shall retain a fund administrator to fulfill the requirements under this subparagraph. The fund administrator—
(I) shall be independent of, and not directly related to, the new commercial enterprise, the regional center associated with the new commercial enterprise, the job creating entity, or any of the principals or managers of such entities;
(II) shall be licensed, active, and in good standing as—
(aa) a certified public accountant;
(bb) an attorney;
(cc) a broker-dealer or investment adviser registered with the Securities and Exchange Commission; or
(dd) an individual or company that otherwise meets such requirements as may be established by the Secretary;
(III) shall monitor and track any transfer of amounts from the separate account;
(IV) shall serve as a cosignatory on all separate accounts;
(V) before any transfer of amounts from a separate account, shall—
(aa) verify that the transfer complies with all governing documents, including organizational, operational, and investment documents; and
(bb) approve such transfer with a written or electronic signature;
(VI) shall periodically provide each alien investor with information about the activity of the account in which the investor's capital investment is held, including—
(aa) the name and location of the bank or financial institution at which the account is maintained;
(bb) the history of the account; and
(cc) any additional information required by the Secretary; and
(VII) shall make and preserve, during the 5-year period beginning on the last day of the Federal fiscal year in which any transactions occurred, books, ledgers, records, and other documentation necessary to comply with this clause, which shall be provided to the Secretary upon request.
(v) Waiver
(I) Waiver permitted
The Secretary of Homeland Security, after consultation with the Securities and Exchange Commission, may waive the requirements under clause (iv) for any new commercial enterprise or affiliated job-creating entity that is controlled by or under common control of an investment adviser or broker-dealer that is registered with the Securities and Exchange Commission if the Secretary, in the Secretary's discretion, determines that the Securities and Exchange Commission provides comparable protections and transparency for alien investors as the protections and transparency provided under clause (iv).
(II) Waiver required
The Secretary of Homeland Security shall waive the requirements under clause (iv) for any new commercial enterprise that commissions an annual independent financial audit of such new commercial enterprise or job creating entity conducted in accordance with Generally Accepted Auditing Standards, which audit shall be provided to the Secretary and all investors in the new commercial enterprise.
(vi) Defined term
In this subparagraph, the term "separate account" means an account that—
(I) is maintained in the United States by a new commercial enterprise or job creating entity at a federally regulated bank or at another financial institution (as defined in
(II) is insured; and
(III) contains only the pooled investment funds of alien investors in a new commercial enterprise with respect to a single capital investment project.
(R) Required checks
Any petition filed by an alien under
(S) Protection from expired legislation
Notwithstanding the expiration of legislation authorizing the regional center program under subparagraph (E), the Secretary of Homeland Security—
(i) shall continue processing petitions under
(ii) may not deny a petition described in clause (i) based on the expiration of such legislation; and
(iii) may not suspend or terminate the allocation of visas to the beneficiaries of approved petitions described in clause (i).
(6) Special rules for "K" special immigrants
(A) Not counted against numerical limitation in year involved
Subject to subparagraph (B), the number of immigrant visas made available to special immigrants under
(B) Counted against numerical limitations in following year
(i) Reduction in employment-based immigrant classifications
The number of visas made available in any fiscal year under paragraphs (1), (2), and (3) shall each be reduced by 1/3 of the number of visas made available in the previous fiscal year to special immigrants described in
(ii) Reduction in per country level
The number of visas made available in each fiscal year to natives of a foreign state under
(iii) Reduction in employment-based immigrant classifications within per country ceiling
In the case of a foreign state subject to
(c) Diversity immigrants
(1) In general
Except as provided in paragraph (2), aliens subject to the worldwide level specified in
(A) Determination of preference immigration
The Attorney General shall determine for the most recent previous 5-fiscal-year period for which data are available, the total number of aliens who are natives of each foreign state and who (i) were admitted or otherwise provided lawful permanent resident status (other than under this subsection) and (ii) were subject to the numerical limitations of
(B) Identification of high-admission and low-admission regions and high-admission and low-admission states
The Attorney General—
(i) shall identify—
(I) each region (each in this paragraph referred to as a "high-admission region") for which the total of the numbers determined under subparagraph (A) for states in the region is greater than 1/6 of the total of all such numbers, and
(II) each other region (each in this paragraph referred to as a "low-admission region"); and
(ii) shall identify—
(I) each foreign state for which the number determined under subparagraph (A) is greater than 50,000 (each such state in this paragraph referred to as a "high-admission state"), and
(II) each other foreign state (each such state in this paragraph referred to as a "low-admission state").
(C) Determination of percentage of worldwide immigration attributable to high-admission regions
The Attorney General shall determine the percentage of the total of the numbers determined under subparagraph (A) that are numbers for foreign states in high-admission regions.
(D) Determination of regional populations excluding high-admission states and ratios of populations of regions within low-admission regions and high-admission regions
The Attorney General shall determine—
(i) based on available estimates for each region, the total population of each region not including the population of any high-admission state;
(ii) for each low-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the low-admission regions; and
(iii) for each high-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the high-admission regions.
(E) Distribution of visas
(i) No visas for natives of high-admission states
The percentage of visas made available under this paragraph to natives of a high-admission state is 0.
(ii) For low-admission states in low-admission regions
Subject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a low-admission region is the product of—
(I) the percentage determined under subparagraph (C), and
(II) the population ratio for that region determined under subparagraph (D)(ii).
(iii) For low-admission states in high-admission regions
Subject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a high-admission region is the product of—
(I) 100 percent minus the percentage determined under subparagraph (C), and
(II) the population ratio for that region determined under subparagraph (D)(iii).
(iv) Redistribution of unused visa numbers
If the Secretary of State estimates that the number of immigrant visas to be issued to natives in any region for a fiscal year under this paragraph is less than the number of immigrant visas made available to such natives under this paragraph for the fiscal year, subject to clause (v), the excess visa numbers shall be made available to natives (other than natives of a high-admission state) of the other regions in proportion to the percentages otherwise specified in clauses (ii) and (iii).
(v) Limitation on visas for natives of a single foreign state
The percentage of visas made available under this paragraph to natives of any single foreign state for any fiscal year shall not exceed 7 percent.
(F) "Region" defined
Only for purposes of administering the diversity program under this subsection, Northern Ireland shall be treated as a separate foreign state, each colony or other component or dependent area of a foreign state overseas from the foreign state shall be treated as part of the foreign state, and the areas described in each of the following clauses shall be considered to be a separate region:
(i) Africa.
(ii) Asia.
(iii) Europe.
(iv) North America (other than Mexico).
(v) Oceania.
(vi) South America, Mexico, Central America, and the Caribbean.
(2) Requirement of education or work experience
An alien is not eligible for a visa under this subsection unless the alien—
(A) has at least a high school education or its equivalent, or
(B) has, within 5 years of the date of application for a visa under this subsection, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience.
(3) Maintenance of information
The Secretary of State shall maintain information on the age, occupation, education level, and other relevant characteristics of immigrants issued visas under this subsection.
(d) Treatment of family members
A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of
(e) Order of consideration
(1) Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General (or in the case of special immigrants under
(2) Immigrant visa numbers made available under subsection (c) (relating to diversity immigrants) shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State for the fiscal year involved.
(3) Waiting lists of applicants for visas under this section shall be maintained in accordance with regulations prescribed by the Secretary of State.
(f) Authorization for issuance
In the case of any alien claiming in his application for an immigrant visa to be described in
(g) Lists
For purposes of carrying out the Secretary's responsibilities in the orderly administration of this section, the Secretary of State may make reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year within each of the categories under subsections (a), (b), and (c) and to rely upon such estimates in authorizing the issuance of visas. The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa, but the Secretary shall reinstate the registration of any such alien who establishes within 2 years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond the alien's control.
(h) Rules for determining whether certain aliens are children
(1) In general
For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of
(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
(2) Petitions described
The petition described in this paragraph is—
(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under
(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under
(3) Retention of priority date
If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.
(4) Application to self-petitions
Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.
(5) Age determination for children of alien investors
An alien who has reached 21 years of age and has been admitted under subsection (d) as a lawful permanent resident on a conditional basis as the child of an alien lawfully admitted for permanent residence under subsection (b)(5), whose lawful permanent resident status on a conditional basis is terminated under
(June 27, 1952, ch. 477, title II, ch. 1, §203,
Editorial Notes
References in Text
The enactment date of this subsection, referred to in subsec. (b)(2)(B)(ii)(IV), probably means the date of enactment of
The Securities Act of 1933, referred to in subsec. (b)(5)(F)(i)(III), is title I of act May 27, 1933, ch. 38,
This chapter, referred to in subsec. (b)(5)(F)(v)(I)(bb), was in the original, "this Act", meaning act June 27, 1952, ch. 477,
Amendments
2022—Subsec. (b)(5)(A)(i).
Subsec. (b)(5)(A)(ii).
Subsec. (b)(5)(B).
Subsec. (b)(5)(C)(i).
Subsec. (b)(5)(C)(ii).
Subsec. (b)(5)(C)(iii).
Subsec. (b)(5)(C)(iv).
Subsec. (b)(5)(D).
Subsec. (b)(5)(E) to (Q).
Subsec. (b)(5)(R).
Subsec. (b)(5)(S).
Subsec. (h)(5).
2006—Subsec. (h)(4).
2002—Subsec. (b)(5)(A).
Subsec. (b)(5)(A)(i) to (iii).
Subsec. (b)(5)(B)(i).
Subsec. (b)(5)(D).
Subsec. (h).
2000—Subsec. (b)(4).
1999—Subsec. (b)(2)(B).
1994—Subsec. (b)(5)(B), (C).
Subsec. (b)(6)(C).
1991—Subsec. (b)(1).
Subsec. (b)(1)(C).
Subsec. (b)(2)(A).
Subsec. (b)(2)(B).
Subsec. (b)(3)(A).
Subsec. (b)(4), (5)(A).
Subsec. (b)(6).
Subsec. (f).
1990—Subsec. (a).
Subsec. (a)(7).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
1980—Subsec. (a).
Subsec. (d).
Subsec. (f).
Subsec. (g).
Subsec. (h).
1978—Subsec. (a)(1) to (7).
Subsec. (a)(8).
1976—Subsec. (a).
Subsec. (e).
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsecs. (f) to (h).
1959—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4).
1957—Subsec. (a)(1).
Statutory Notes and Related Subsidiaries
Effective Date of 2022 Amendment
Effective Date of 2002 Amendments
"(1) A petition under section 204(a)(1)(H) of the Immigration and Nationality Act (
"(2) A petition under section 216A(c)(1)(A) of such Act (
Amendment by
Effective Date of 2000 Amendment
Effective Date of 1994 Amendment
Amendment by section 219(c) of
Effective Date of 1991 Amendments
Amendment by
Amendment by
Effective Date of 1990 Amendment
Amendment by sections 111, 121(a), 131, 162(a)(1) of
Amendment by section 603(a)(3) of
Effective Date of 1980 Amendment
Amendment by section 203(c) of
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
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
Visa Availability for Government Employee Immigrant Visa Program
"(a)
"(b)
"(1)
"(2)
"(d)
Enhanced Pay Scale for Certain Federal Employees Administering the Employment Creation Program
Adjudication of Petitions
Timely Processing
"(a)
"(b)
"(1) 180 days after receiving a proposal for the establishment of a regional center described in section 203(b)(5)(E) of such Act;
"(2) 180 days after receiving an application for approval of an investment in a new commercial enterprise described in section 203(b)(5)(F) of such Act;
"(3) 90 days after receiving an application for approval of an investment in a new commercial enterprise described in section 203(b)(5)(F) of such Act that is located in a targeted employment area (as defined in section 203(b)(5)(D) of such Act);
"(4) 240 days after receiving a petition from an alien desiring to be classified under section 203(b)(5)(E) of such Act;
"(5) 120 days after receiving a petition from an alien desiring to be classified under section 203(b)(5)(E) of such Act with respect to an investment in a targeted employment area (as defined in section 203(b)(5)(D) of such Act); and
"(6) 240 days after receiving a petition from an alien for removal of conditions described in section 216A(c) of such Act.
"(c)
"(1) in an amount that is equal to the amount paid by all other classes of fee-paying applicants for immigration-related benefits, to contribute to the coverage or reduction of the costs of processing or adjudicating classes of immigration benefit applications that Congress, or the Secretary of Homeland Security in the case of asylum applications, has authorized to be processed or adjudicated at no cost or at a reduced cost to the applicant; and
"(2) in an amount that is not greater than 1 percent of the fee for filing a petition under section 203(b)(5) of the Immigration and Nationality Act (
"(d)
"(e)
"(f)
"(1) the fee study described in subsection (a); or
"(2) regulations promulgated by the Secretary of Homeland Security, in accordance with subchapter II of
GAO Study
"(a)
"(b)
"(1) the number of immigrant investors that have received visas under the immigrant investor program in each year since the inception of the program;
"(2) the country of origin of the immigrant investors;
"(3) the localities where the immigrant investors are settling and whether those investors generally remain in the localities where they initially settle;
"(4) the number of immigrant investors that have sought to become citizens of the United States;
"(5) the types of commercial enterprises that the immigrant investors have established; and
"(6) the types and number of jobs created by the immigrant investors."
Recapture of Unused Employment-Based Immigrant Visas
"(1)
"(2)
"(A)
"(B)(i)
"(ii)
"(C)
"(3)
Temporary Reduction in Workers' Visas
"(1) Beginning in the fiscal year following the fiscal year in which a visa has been made available under section 203(b)(3)(A)(iii) of the Immigration and Nationality Act [
"(2) In no case shall the reduction under paragraph (1) for a fiscal year exceed the amount by which—
"(A) the number computed under subsection (d)(2)(A) [section 203(d)(2)(A) of
"(B) the total of the reductions in available visas under this subsection for all previous fiscal years."
Diversity Immigrant Lottery Fee
Eligibility for Visas for Polish Applicants for 1995 Diversity Immigrant Program
"(a)
"(1) was selected as a diversity immigrant under such section for fiscal year 1995;
"(2) applied for adjustment of status to that of an alien lawfully admitted for permanent residence pursuant to section 245 of such Act [
"(3) was not determined by the Attorney General to be excludable under section 212 of such Act [
"(4) did not become an alien lawfully admitted for permanent residence during fiscal year 1995.
"(b)
"(c)
Soviet Scientists Immigration
"(1) previous experience in implementing the Soviet Scientists Immigration Act of 1992 [
"(2) any changes that those officials would recommend in the regulations prescribed under that Act."
[For definition of "Secretary" as used in section 1304(d) of
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Soviet Scientists Immigration Act of 1992'.
"SEC. 2. DEFINITIONS.
"For purposes of this Act—
"(1) the term 'Baltic states' means the sovereign nations of Latvia, Lithuania, and Estonia;
"(2) the term 'independent states of the former Soviet Union' means the sovereign nations of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan; and
"(3) the term 'eligible independent states and Baltic scientists' means aliens—
"(A) who are nationals of any of the independent states of the former Soviet Union or the Baltic states; and
"(B) who are scientists or engineers who have expertise in nuclear, chemical, biological or other high technology fields or who are working on nuclear, chemical, biological or other high-technology defense projects, as defined by the Attorney General.
"SEC. 3. WAIVER OF JOB OFFER REQUIREMENT.
"The requirement in section 203(b)(2)(A) of the Immigration and Nationality Act (
"SEC. 4. CLASSIFICATION OF INDEPENDENT STATES SCIENTISTS AS HAVING EXCEPTIONAL ABILITY.
"(a)
"(b)
"(c)
"(d)
"(1) The period beginning on the date of the enactment of this Act [Oct. 24, 1992] and ending 4 years after such date.
"(2) The period beginning on the date of the enactment of the Security Assistance Act of 2002 [Sept. 30, 2002] and ending 4 years after such date."
Immigration Program
Transition for Spouses and Minor Children of Legalized Aliens
"(a)
"(1)
"(2)
"(A) the sum of the number of aliens described in subparagraphs (A) and (B) of section 201(b)(2) of the Immigration and Nationality Act [
"(B) 239,000.
"(b)
"(c)
"(1) temporary or permanent residence status under section 210 of the Immigration and Nationality Act [
"(2) temporary or permanent residence status under section 245A of the Immigration and Nationality Act [
"(3) permanent residence status under section 202 of the Immigration Reform and Control Act of 1986 [
"(d)
Transition for Employees of Certain United States Businesses Operating in Hong Kong
"(a)
"(1)
"(2)
"(3)
"(A) is a resident of Hong Kong and is employed in Hong Kong except for temporary absences at the request of the employer and has been employed in Hong Kong for at least 12 consecutive months as an officer or supervisor or in a capacity that is managerial, executive, or involves specialized knowledge, by a business entity which (i) is owned and organized in the United States (or is the subsidiary or affiliate of a business owned and organized in the United States), (ii) employs at least 100 employees in the United States and at least 50 employees outside the United States, and (iii) has a gross annual income of at least $50,000,000, and
"(B) has an offer of employment from such business entity in the United States as an officer or supervisor or in a capacity that is managerial, executive, or involves specialized knowledge, which offer (i) is effective from the time of filing the petition for classification under this section through and including the time of entry into the United States and (ii) provides for salary and benefits comparable to the salary and benefits provided to others with similar responsibilities and experience within the same company.
"(b)
"(c)
"(d)
"(1)
"(2)
"(3)
"(4)
"(5)
[Section 124 of
Diversity Transition for Aliens Who Are Natives of Certain Adversely Affected Foreign States
"(1)
"(2)
"(3)
"(a)
"(b)
"(1) is a native of a foreign state that was identified as an adversely affected foreign state for purposes of section 314 of the Immigration Reform and Control Act of 1986 [
"(2) has a firm commitment for employment in the United States for a period of at least 1 year (beginning on the date of admission under this section), and
"(3) except as provided in subsection (c), is admissible as an immigrant.
"(c)
"(d)
"(e)
"(f)
[
[
One-Year Diversity Transition for Aliens Who Have Been Notified of Availability of NP–5 Visas
Transition for Displaced Tibetans
Expedited Issuance of Lebanese Second and Fifth Preference Visas
"(a)
"(b)
"(1) are natives of Lebanon,
"(2) are not firmly resettled in any foreign country outside Lebanon, and
"(3) as of the date of the enactment of this Act [Nov. 29, 1990], are the beneficiaries of a petition approved to accord status under section 203(a)(2) or 203(a)(5) of the Immigration and Nationality Act [
or who are the spouse or child of such an alien if accompanying or following to join the alien."
[Section 155 of
Order of Consideration
Making Visas Available to Immigrants From Underrepresented Countries To Enhance Diversity in Immigration
Making Visas Available to Nonpreference Immigrants
References to Conditional Entry Requirements of Subsection (a)(7) of This Section in Other Federal Laws
Retroactive Adjustment of Refugee Status
For adjustment of the status of refugees paroled into the United States pursuant to
Entitlement to Preferential Status
"(a) The amendments made by this Act [see Short Title of 1976 Amendment note set out under
"(b) An alien chargeable to the numerical limitation contained in section 21(e) of the Act of October 3, 1965 (
Nonquota Immigrant Status of Certain Relatives of United States Citizens; Issuance of Nonquota Immigrant Visas on Basis of Petitions Filed Prior to January 1, 1962
Nonquota Immigrant Status of Skilled Specialists; Issuance of Nonquota Immigrant Visas on Basis of Petitions Filed Prior to April 1, 1962
Issuance of Nonquota Immigrant Visas to Certain Eligible Orphans
[
Nonquota Immigrant Status of Spouses and Children of Certain Aliens
[Repeal of section 4 of
Adopted Sons or Adopted Daughters, Preference Status
Special Nonquota Immigrant Visas for Refugees
[Repeal of section 6 of
Issuance of Nonquota Immigrant Visas on Basis of Petitions Approved Prior to July 1, 1957
[Repeal of section 12 of
Issuance of Nonquota Immigrant Visas on Basis of Petitions Approved Prior to July 1, 1958
[Repeal of section 12A of
§1153a. Transparency
(a) In general
Employees of the Department of Homeland Security, including the Secretary of Homeland Security, the Secretary's counselors, the Assistant Secretary for the Private Sector, the Director of U.S. Citizenship and Immigration Services, counselors to such Director, and the Chief of the Immigrant Investor Programs Office (or any successor to such Office) at U.S. Citizenship and Immigration Services, shall act impartially and may not give preferential treatment to any entity, organization, or individual in connection with any aspect of the immigrant visa program described in
(b) Improper activities
Activities that constitute preferential treatment under subsection (a) shall include—
(1) working on, or in any way attempting to influence, in a manner not available to or accorded to all other petitioners, applicants, and seekers of benefits under the immigrant visa program referred to in subsection (a), the standard processing of an application, petition, or benefit for—
(A) a regional center;
(B) a new commercial enterprise;
(C) a job-creating entity; or
(D) any person or entity associated with such regional center, new commercial enterprise, or job-creating entity; and
(2) meeting or communicating with persons associated with the entities listed in paragraph (1), at the request of such persons, in a manner not available to or accorded to all other petitioners, applicants, and seekers of benefits under such immigrant visa program.
(c) Reporting of communications
(1) Written communication
Employees of the Department of Homeland Security, including the officials listed in subsection (a), shall include, in the record of proceeding for a case under
(2) Oral communication
If substantive oral communication, including telephonic communication, virtual communication, or in-person meetings, takes place between officials of the Department of Homeland Security and non-Department persons or entities advocating for regional center applications or individual petitions under
(A) the conversation shall be recorded; or
(B) detailed minutes of the session shall be taken and included in the record of proceeding.
(3) Notification
(A) In general
If the Secretary, in the course of written or oral communication described in this subsection, receives evidence about a specific case from anyone other than an affected party or his or her representative (excluding Federal Government or law enforcement sources), such information may not be made part of the record of proceeding and may not be considered in adjudicative proceedings unless—
(i) the affected party has been given notice of such evidence; and
(ii) if such evidence is derogatory, the affected party has been given an opportunity to respond to the evidence.
(B) Information from law enforcement, intelligence agencies, or confidential sources
(i) Law enforcement or intelligence agencies
Evidence received from law enforcement or intelligence agencies may not be made part of the record of proceeding without the consent of the relevant agency or law enforcement entity.
(ii) Whistleblowers, confidential sources, or intelligence agencies
Evidence received from whistleblowers, other confidential sources, or the intelligence community that is included in the record of proceeding and considered in adjudicative proceedings shall be handled in a manner that does not reveal the identity of the whistleblower or confidential source, or reveal classified information.
(d) Consideration of evidence
(1) In general
No case-specific communication with persons or entities that are not part of the Department of Homeland Security may be considered in the adjudication of an application or petition under
(2) Waiver
The Secretary of Homeland Security may waive the requirement under paragraph (1) only in the interests of national security or for investigative or law enforcement purposes.
(e) Channels of communication
(1) Email address or equivalent
The Director of U.S. Citizenship and Immigration Services shall maintain an email account (or equivalent means of communication) for persons or entities—
(A) with inquiries regarding specific petitions or applications under the immigrant visa program described in
(B) seeking information that is not case-specific about the immigrant visa program described in such section 1153(b)(5).
(2) Communication only through appropriate channels or offices
(A) Announcement of appropriate channels of communication
Not later than 40 days after March 15, 2022, the Director of U.S. Citizenship and Immigration Services shall announce that the only channels or offices by which industry stakeholders, petitioners, applicants, and seekers of benefits under the immigrant visa program described in
(i) the email address or equivalent channel described in paragraph (1);
(ii) the National Customer Service Center, or any successor to such Center; or
(iii) the Office of Public Engagement, Immigrant Investor Program Office, including the Stakeholder Engagement Branch, or any successors to those Offices or that Branch.
(B) Direction of incoming communications
(i) In general
Employees of the Department of Homeland Security shall direct communications described in subparagraph (A) to the channels of communication or offices listed in clauses (i) through (iii) of subparagraph (A).
(ii) Rule of construction
Nothing in this subparagraph may be construed to prevent—
(I) any person from communicating with the Ombudsman of U.S. Citizenship and Immigration Services regarding the immigrant investor program under
(II) the Ombudsman from resolving problems regarding such immigrant investor program pursuant to the authority granted under
(C) Log
(i) In general
The Director of U.S. Citizenship and Immigration Services shall maintain a written or electronic log of—
(I) all communications described in subparagraph (A) and communications from Members of Congress, which shall reference the date, time, and subject of the communication, and the identity of the Department official, if any, to whom the inquiry was forwarded;
(II) with respect to written communications described in subsection (c)(1), the date on which the communication was received, the identities of the sender and addressee, and the subject of the communication; and
(III) with respect to oral communications described in subsection (c)(2), the date on which the communication occurred, the participants in the conversation or meeting, and the subject of the communication.
(ii) Transparency
The log of communications described in clause (i) shall be made publicly available in accordance with
(3) Publication of information
Not later than 30 days after a person or entity inquiring about a specific case or generally about the immigrant visa program described in
(f) Penalty
(1) In general
Any person who intentionally violates the prohibition on preferential treatment under this section or intentionally violates the reporting requirements under subsection (c) shall be disciplined in accordance with paragraph (2).
(2) Sanctions
Not later than 90 days after March 15, 2022, the Secretary of Homeland Security shall establish a graduated set of sanctions based on the severity of the violation referred to in paragraph (1), which may include, in addition to any criminal or civil penalties that may be imposed, written reprimand, suspension, demotion, or removal.
(g) Rule of construction regarding classified information
Nothing in this section may be construed to modify any law, regulation, or policy regarding the handling or disclosure of classified information.
(h) Rule of construction regarding private right of action
Nothing in this section may be construed to create or authorize a private right of action to challenge a decision of an employee of the Department of Homeland Security.
(i) Effective date
This section, and the amendments made by this section, shall take effect on March 15, 2022.
(
Editorial Notes
Codification
Section was enacted as part of the EB–5 Reform and Integrity Act of 2022, and also as part of the Consolidated Appropriations Act, 2022, and not as part of the Immigration and Nationality Act which comprises this chapter.
§1154. Procedure for granting immigrant status
(a) Petitioning procedure
(1)(A)(i) Except as provided in clause (viii), any citizen of the United States claiming that an alien is entitled to classification by reason of a relationship described in paragraph (1), (3), or (4) of
(ii) An alien spouse described in the second sentence of
(iii)(I) An alien who is described in subclause (II) may file a petition with the Attorney General under this clause for classification of the alien (and any child of the alien) if the alien demonstrates to the Attorney General that—
(aa) the marriage or the intent to marry the United States citizen was entered into in good faith by the alien; and
(bb) during the marriage or relationship intended by the alien to be legally a marriage, the alien or a child of the alien has been battered or has been the subject of extreme cruelty perpetrated by the alien's spouse or intended spouse.
(II) For purposes of subclause (I), an alien described in this subclause is an alien—
(aa)(AA) who is the spouse of a citizen of the United States;
(BB) who believed that he or she had married a citizen of the United States and with whom a marriage ceremony was actually performed and who otherwise meets any applicable requirements under this chapter to establish the existence of and bona fides of a marriage, but whose marriage is not legitimate solely because of the bigamy of such citizen of the United States; or
(CC) who was a bona fide spouse of a United States citizen within the past 2 years and—
(aaa) whose spouse died within the past 2 years;
(bbb) whose spouse lost or renounced citizenship status within the past 2 years related to an incident of domestic violence; or
(ccc) who demonstrates a connection between the legal termination of the marriage within the past 2 years and battering or extreme cruelty by the United States citizen spouse;
(bb) who is a person of good moral character;
(cc) who is eligible to be classified as an immediate relative under
(dd) who has resided with the alien's spouse or intended spouse.
(iv) An alien who is the child of a citizen of the United States, or who was a child of a United States citizen parent who within the past 2 years lost or renounced citizenship status related to an incident of domestic violence, and who is a person of good moral character, who is eligible to be classified as an immediate relative under
(v) An alien who—
(I) is the spouse, intended spouse, or child living abroad of a citizen who—
(aa) is an employee of the United States Government;
(bb) is a member of the uniformed services (as defined in
(cc) has subjected the alien or the alien's child to battery or extreme cruelty in the United States; and
(II) is eligible to file a petition under clause (iii) or (iv),
shall file such petition with the Attorney General under the procedures that apply to self-petitioners under clause (iii) or (iv), as applicable.
(vi) For the purposes of any petition filed under clause (iii) or (iv), the denaturalization, loss or renunciation of citizenship, death of the abuser, divorce, or changes to the abuser's citizenship status after filing of the petition shall not adversely affect the approval of the petition, and for approved petitions shall not preclude the classification of the eligible self-petitioning spouse or child as an immediate relative or affect the alien's ability to adjust status under subsections (a) and (c) of
(vii) An alien may file a petition with the Secretary of Homeland Security under this subparagraph for classification of the alien under
(I) is the parent of a citizen of the United States or was a parent of a citizen of the United States who, within the past 2 years, lost or renounced citizenship status related to an incident of domestic violence or died;
(II) is a person of good moral character;
(III) is eligible to be classified as an immediate relative under
(IV) resides, or has resided, with the citizen daughter or son; and
(V) demonstrates that the alien has been battered or subject to extreme cruelty by the citizen daughter or son.
(viii)(I) Clause (i) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in clause (i) is filed.
(II) For purposes of subclause (I), the term "specified offense against a minor" is defined as in
(B)(i)(I) Except as provided in subclause (II), any alien lawfully admitted for permanent residence claiming that an alien is entitled to a classification by reason of the relationship described in
(I) 1 Subclause (I) shall not apply in the case of an alien lawfully admitted for permanent residence who has been convicted of a specified offense against a minor (as defined in subparagraph (A)(viii)(II)), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that such person poses no risk to the alien with respect to whom a petition described in subclause (I) is filed.
(ii)(I) An alien who is described in subclause (II) may file a petition with the Attorney General under this clause for classification of the alien (and any child of the alien) if such a child has not been classified under clause (iii) of
(aa) the marriage or the intent to marry the lawful permanent resident was entered into in good faith by the alien; and
(bb) during the marriage or relationship intended by the alien to be legally a marriage, the alien or a child of the alien has been battered or has been the subject of extreme cruelty perpetrated by the alien's spouse or intended spouse.
(II) For purposes of subclause (I), an alien described in this paragraph is an alien—
(aa)(AA) who is the spouse of a lawful permanent resident of the United States; or
(BB) who believed that he or she had married a lawful permanent resident of the United States and with whom a marriage ceremony was actually performed and who otherwise meets any applicable requirements under this chapter to establish the existence of and bona fides of a marriage, but whose marriage is not legitimate solely because of the bigamy of such lawful permanent resident of the United States; or
(CC) who was a bona fide spouse of a lawful permanent resident within the past 2 years and—
(aaa) whose spouse lost status within the past 2 years due to an incident of domestic violence; or
(bbb) who demonstrates a connection between the legal termination of the marriage within the past 2 years and battering or extreme cruelty by the lawful permanent resident spouse;
(bb) who is a person of good moral character;
(cc) who is eligible to be classified as a spouse of an alien lawfully admitted for permanent residence under
(dd) who has resided with the alien's spouse or intended spouse.
(iii) An alien who is the child of an alien lawfully admitted for permanent residence, or who was the child of a lawful permanent resident who within the past 2 years lost lawful permanent resident status due to an incident of domestic violence, and who is a person of good moral character, who is eligible for classification under
(iv) An alien who—
(I) is the spouse, intended spouse, or child living abroad of a lawful permanent resident who—
(aa) is an employee of the United States Government;
(bb) is a member of the uniformed services (as defined in
(cc) has subjected the alien or the alien's child to battery or extreme cruelty in the United States; and
(II) is eligible to file a petition under clause (ii) or (iii),
shall file such petition with the Attorney General under the procedures that apply to self-petitioners under clause (ii) or (iii), as applicable.
(v)(I) For the purposes of any petition filed or approved under clause (ii) or (iii), divorce, or the loss of lawful permanent resident status by a spouse or parent after the filing of a petition under that clause shall not adversely affect approval of the petition, and, for an approved petition, shall not affect the alien's ability to adjust status under subsections (a) and (c) of
(II) Upon the lawful permanent resident spouse or parent becoming or establishing the existence of United States citizenship through naturalization, acquisition of citizenship, or other means, any petition filed with the Immigration and Naturalization Service and pending or approved under clause (ii) or (iii) on behalf of an alien who has been battered or subjected to extreme cruelty shall be deemed reclassified as a petition filed under subparagraph (A) even if the acquisition of citizenship occurs after divorce or termination of parental rights.
(C) Notwithstanding
(D)(i)(I) Any child who attains 21 years of age who has filed a petition under clause (iv) of subsection (a)(1)(A) or subsection (a)(1)(B)(iii) that was filed or approved before the date on which the child attained 21 years of age shall be considered (if the child has not been admitted or approved for lawful permanent residence by the date the child attained 21 years of age) a petitioner for preference status under paragraph (1), (2), or (3) of
(II) Any individual described in subclause (I) is eligible for deferred action and work authorization.
(III) Any derivative child who attains 21 years of age who is included in a petition described in clause (ii) that was filed or approved before the date on which the child attained 21 years of age shall be considered (if the child has not been admitted or approved for lawful permanent residence by the date the child attained 21 years of age) a VAWA self-petitioner with the same priority date as that assigned to the petitioner in any petition described in clause (ii). No new petition shall be required to be filed.
(IV) Any individual described in subclause (III) and any derivative child of a petition described in clause (ii) is eligible for deferred action and work authorization.
(ii) The petition referred to in clause (i)(III) is a petition filed by an alien under subparagraph (A)(iii), (A)(iv), (B)(ii) or (B)(iii) in which the child is included as a derivative beneficiary.
(iii) Nothing in the amendments made by the Child Status Protection Act shall be construed to limit or deny any right or benefit provided under this subparagraph.
(iv) Any alien who benefits from this subparagraph may adjust status in accordance with subsections (a) and (c) of
(v) For purposes of this paragraph, an individual who is not less than 21 years of age, who qualified to file a petition under subparagraph (A)(iv) or (B)(iii) as of the day before the date on which the individual attained 21 years of age, and who did not file such a petition before such day, shall be treated as having filed a petition under such subparagraph as of such day if a petition is filed for the status described in such subparagraph before the individual attains 25 years of age and the individual shows that the abuse was at least one central reason for the filing delay. Clauses (i) through (iv) of this subparagraph shall apply to an individual described in this clause in the same manner as an individual filing a petition under subparagraph (A)(iv) or (B)(iii).
(E) Any alien desiring to be classified under
(F) Any employer desiring and intending to employ within the United States an alien entitled to classification under
(G)(i) Any alien (other than a special immigrant under
(ii) Aliens claiming status as a special immigrant under
(H)(i) Any alien seeking classification under
(ii) A petitioner described in clause (i) shall establish eligibility at the time he or she files a petition for classification under
(I)(i) Any alien desiring to be provided an immigrant visa under
(ii)(I) The Secretary of State shall designate a period for the filing of petitions with respect to visas which may be issued under
(II) Aliens who qualify, through random selection, for a visa under
(III) The Secretary of State shall prescribe such regulations as may be necessary to carry out this clause.
(iii) A petition under this subparagraph shall be in such form as the Secretary of State may by regulation prescribe and shall contain such information and be supported by such documentary evidence as the Secretary of State may require.
(J) In acting on petitions filed under clause (iii) or (iv) of subparagraph (A) or clause (ii) or (iii) of subparagraph (B), or in making determinations under subparagraphs (C) and (D), the Attorney General shall consider any credible evidence relevant to the petition. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.
(K) Upon the approval of a petition as a VAWA self-petitioner, the alien—
(i) is eligible for work authorization; and
(ii) may be provided an "employment authorized" endorsement or appropriate work permit incidental to such approval.
(L) Notwithstanding the previous provisions of this paragraph, an individual who was a VAWA petitioner or who had the status of a nonimmigrant under subparagraph (T) or (U) of
(2)(A) The Attorney General may not approve a spousal second preference petition for the classification of the spouse of an alien if the alien, by virtue of a prior marriage, has been accorded the status of an alien lawfully admitted for permanent residence as the spouse of a citizen of the United States or as the spouse of an alien lawfully admitted for permanent residence, unless—
(i) a period of 5 years has elapsed after the date the alien acquired the status of an alien lawfully admitted for permanent residence, or
(ii) the alien establishes to the satisfaction of the Attorney General by clear and convincing evidence that the prior marriage (on the basis of which the alien obtained the status of an alien lawfully admitted for permanent residence) was not entered into for the purpose of evading any provision of the immigration laws.
In this subparagraph, the term "spousal second preference petition" refers to a petition, seeking preference status under
(B) Subparagraph (A) shall not apply to a petition filed for the classification of the spouse of an alien if the prior marriage of the alien was terminated by the death of his or her spouse.
(b) Investigation; consultation; approval; authorization to grant preference status
After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under
(c) Limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriages entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud
Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.
(d) Recommendation of valid home-study
(1) Notwithstanding the provisions of subsections (a) and (b) no petition may be approved on behalf of a child defined in subparagraph (F) or (G) of
(2) Notwithstanding the provisions of subsections (a) and (b), no petition may be approved on behalf of a child defined in
(e) Subsequent finding of non-entitlement to preference classification
Nothing in this section shall be construed to entitle an immigrant, in behalf of whom a petition under this section is approved, to be admitted 3 the United States as an immigrant under subsection (a), (b), or (c) of
(f) Preferential treatment for children fathered by United States citizens and born in Korea, Vietnam, Laos, Kampuchea, or Thailand after 1950 and before October 22, 1982
(1) Any alien claiming to be an alien described in paragraph (2)(A) of this subsection (or any person on behalf of such an alien) may file a petition with the Attorney General for classification under
(2) The Attorney General may approve a petition for an alien under paragraph (1) if—
(A) he has reason to believe that the alien (i) was born in Korea, Vietnam, Laos, Kampuchea, or Thailand after 1950 and before October 22, 1982, and (ii) was fathered by a United States citizen;
(B) he has received an acceptable guarantee of legal custody and financial responsibility described in paragraph (4); and
(C) in the case of an alien under eighteen years of age, (i) the alien's placement with a sponsor in the United States has been arranged by an appropriate public, private, or State child welfare agency licensed in the United States and actively involved in the intercountry placement of children and (ii) the alien's mother or guardian has in writing irrevocably released the alien for emigration.
(3) In considering petitions filed under paragraph (1), the Attorney General shall—
(A) consult with appropriate governmental officials and officials of private voluntary organizations in the country of the alien's birth in order to make the determinations described in subparagraphs (A) and (C)(ii) of paragraph (2); and
(B) consider the physical appearance of the alien and any evidence provided by the petitioner, including birth and baptismal certificates, local civil records, photographs of, and letters or proof of financial support from, a putative father who is a citizen of the United States, and the testimony of witnesses, to the extent it is relevant or probative.
(4)(A) A guarantee of legal custody and financial responsibility for an alien described in paragraph (2) must—
(i) be signed in the presence of an immigration officer or consular officer by an individual (hereinafter in this paragraph referred to as the "sponsor") who is twenty-one years of age or older, is of good moral character, and is a citizen of the United States or alien lawfully admitted for permanent residence, and
(ii) provide that the sponsor agrees (I) in the case of an alien under eighteen years of age, to assume legal custody for the alien after the alien's departure to the United States and until the alien becomes eighteen years of age, in accordance with the laws of the State where the alien and the sponsor will reside, and (II) to furnish, during the five-year period beginning on the date of the alien's acquiring the status of an alien lawfully admitted for permanent residence, or during the period beginning on the date of the alien's acquiring the status of an alien lawfully admitted for permanent residence and ending on the date on which the alien becomes twenty-one years of age, whichever period is longer, such financial support as is necessary to maintain the family in the United States of which the alien is a member at a level equal to at least 125 per centum of the current official poverty line (as established by the Director of the Office of Management and Budget, under
(B) A guarantee of legal custody and financial responsibility described in subparagraph (A) may be enforced with respect to an alien against his sponsor in a civil suit brought by the Attorney General in the United States district court for the district in which the sponsor resides, except that a sponsor or his estate shall not be liable under such a guarantee if the sponsor dies or is adjudicated a bankrupt under title 11.
(g) Restriction on petitions based on marriages entered while in exclusion or deportation proceedings
Notwithstanding subsection (a), except as provided in
(h) Survival of rights to petition
The legal termination of a marriage may not be the sole basis for revocation under
(i) Professional athletes
(1) In general
A petition under subsection (a)(4)(D) 4 for classification of a professional athlete shall remain valid for the athlete after the athlete changes employers, if the new employer is a team in the same sport as the team which was the employer who filed the petition.
(2) "Professional athlete" defined
For purposes of paragraph (1), the term "professional athlete" means an individual who is employed as an athlete by—
(A) 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
(B) any minor league team that is affiliated with such an association.
(j) Job flexibility for long delayed applicants for adjustment of status to permanent residence
A petition under subsection (a)(1)(D) 4 for an individual whose application for adjustment of status pursuant to
(k) Procedures for unmarried sons and daughters of citizens
(1) In general
Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant under
(2) Exception
Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.
(3) Priority date
Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
(4) Clarification
This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.
(l) Surviving relative consideration for certain petitions and applications
(1) In general
An alien described in paragraph (2) who resided in the United States at the time of the death of the qualifying relative and who continues to reside in the United States shall have such petition described in paragraph (2), or an application for adjustment of status to that of a person admitted for lawful permanent residence based upon the family relationship described in paragraph (2), and any related applications, adjudicated notwithstanding the death of the qualifying relative, unless the Secretary of Homeland Security determines, in the unreviewable discretion of the Secretary, that approval would not be in the public interest.
(2) Alien described
An alien described in this paragraph is an alien who, immediately prior to the death of his or her qualifying relative, was—
(A) the beneficiary of a pending or approved petition for classification as an immediate relative (as described in
(B) the beneficiary of a pending or approved petition for classification under section 1153(a) or (d) of this title;
(C) a derivative beneficiary of a pending or approved petition for classification under
(D) the beneficiary of a pending or approved refugee/asylee relative petition under
(E) an alien admitted in "T" nonimmigrant status as described in
(F) a child of an alien who filed a pending or approved petition for classification or application for adjustment of status or other benefit specified in
(G) an asylee (as described in
(June 27, 1952, ch. 477, title II, ch. 1, §204,
Editorial Notes
References in Text
This chapter, referred to in subsec. (a)(1)(A)(iii)(II)(aa)(BB), (B)(ii)(II)(aa)(BB), was in the original, "this Act", meaning act June 27, 1952, ch. 477,
The Child Status Protection Act, referred to in subsec. (a)(1)(D)(iii), is
The Intercountry Adoption Act of 2000, referred to in subsec. (d)(2), is
Subsection (a)(4)(D) and subsection (a)(1)(D), referred to in subsecs. (i)(1) and (j), probably should refer to subsec. (a)(1)(F) of this section. The reference to subsec. (a)(4)(D) probably should have been to subsec. "(a)(1)(D)", as no par. (4) of subsec. (a) has been enacted. Subsec. (a)(1)(D) of this section was redesignated subsec. (a)(1)(F) by
Amendments
2022—Subsec. (a)(1)(H).
2013—Subsec. (a)(1)(I)(iv).
Subsec. (l)(2)(F), (G).
2009—Subsec. (l).
2006—Subsec. (a)(1)(A)(i).
Subsec. (a)(1)(A)(vii).
Subsec. (a)(1)(A)(viii).
Subsec. (a)(1)(B)(i).
Subsec. (a)(1)(D)(v).
Subsec. (a)(1)(D)(i)(I).
Subsec. (a)(1)(D)(i)(III).
Subsec. (a)(1)(D)(iv).
Subsec. (a)(1)(K).
Subsec. (a)(1)(L).
2002—Subsec. (a)(1)(D)(iii).
Subsec. (k).
2000—Subsec. (a)(1)(A)(iii).
"(I) the alien is residing in the United States, the marriage between the alien and the spouse was entered into in good faith by the alien, and during the marriage the alien or a child of the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien's spouse; and
"(II) the alien is a person whose removal, in the opinion of the Attorney General, would result in extreme hardship to the alien or a child of the alien."
Subsec. (a)(1)(A)(iv).
"(I) the alien is residing in the United States and during the period of residence with the citizen parent the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien's citizen parent; and
"(II) the alien is a person whose removal, in the opinion of the Attorney General, would result in extreme hardship to the alien."
Subsec. (a)(1)(A)(v).
Subsec. (a)(1)(A)(vi).
Subsec. (a)(1)(B)(ii).
Subsec. (a)(1)(B)(iii).
"(I) the alien is residing in the United States and during the period of residence with the permanent resident parent the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien's permanent resident parent; and
"(II) the alien is a person whose removal, in the opinion of the Attorney General, would result in extreme hardship to the alien."
Subsec. (a)(1)(B)(iv).
Subsec. (a)(1)(B)(v).
Subsec. (a)(1)(C) to (I).
Subsec. (a)(1)(J).
Subsec. (d).
Subsec. (h).
Subsec. (j).
1996—Subsec. (a)(1)(A)(iii)(II), (iv)(II), (B)(iii)(II).
Subsec. (e).
Subsec. (i).
1994—Subsec. (a)(1).
Subsec. (a)(1)(A).
Subsec. (a)(2).
Subsec. (h).
1991—Subsec. (a)(1)(A).
Subsec. (a)(1)(F).
Subsec. (a)(1)(G)(iii).
Subsec. (e).
Subsec. (f)(4)(A)(ii)(II).
Subsec. (g).
1990—Subsec. (a)(1).
Subsec. (b).
Subsec. (e).
Subsec. (f).
Subsec. (f)(1).
Subsec. (g).
Subsec. (h).
1988—Subsec. (c).
Subsec. (g)(3)(A).
1986—Subsec. (a).
Subsec. (c).
Subsec. (h).
1982—Subsec. (g).
1981—Subsec. (a).
Subsec. (d).
Subsecs. (e), (f).
1980—Subsec. (d).
1978—Subsec. (c).
Subsecs. (e), (f).
1976—Subsec. (f).
1965—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1962—Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 2022 Amendment
"(1)
"(2)
Effective and Termination Dates of 2013 Amendment
Effective Date of 2002 Amendment
Amendment by
Effective Date of 2000 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by section 308(e)(1)(A), (f)(2)(A) of
Effective Date of 1994 Amendments
Amendment by
Amendment by
Effective Date of 1991 Amendment
Amendment by sections 302(e)(4), (5) and 308(b) of
Effective Date of 1990 Amendment
Amendment by section 162(b) of
Effective Date of 1986 Amendment
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
Construction of 2009 Amendment
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
Alien Sheepherders
Act Sept. 3, 1954, ch. 1254, §§1–3,
1 So in original. Probably should be "(II)".
2 So in original. Probably should be "child's".
3 So in original. Probably should be followed by "to".
4 See References in Text note below.
§1155. Revocation of approval of petitions; effective date
The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under
(June 27, 1952, ch. 477, title II, ch. 1, §205,
Editorial Notes
Amendments
2004—
1996—
1965—
1961—Subsec. (b).
Subsec. (c).
1959—Subsec. (b).
Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
§1156. Unused immigrant visas
If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.
(June 27, 1952, ch. 477, title II, ch. 1, §206,
Editorial Notes
Amendments
1996—
1965—
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1965 Amendment
For effective date of amendment by
§1157. Annual admission of refugees and admission of emergency situation refugees
(a) Maximum number of admissions; increases for humanitarian concerns; allocations
(1) Except as provided in subsection (b), the number of refugees who may be admitted under this section in fiscal year 1980, 1981, or 1982, may not exceed fifty thousand unless the President determines, before the beginning of the fiscal year and after appropriate consultation (as defined in subsection (e)), that admission of a specific number of refugees in excess of such number is justified by humanitarian concerns or is otherwise in the national interest.
(2) Except as provided in subsection (b), the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest.
(3) Admissions under this subsection shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after appropriate consultation.
(4) In the determination made under this subsection for each fiscal year (beginning with fiscal year 1992), the President shall enumerate, with the respective number of refugees so determined, the number of aliens who were granted asylum in the previous year.
(b) Determinations by President respecting number of admissions for humanitarian concerns
If the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under subsection (a), the President may fix a number of refugees to be admitted to the United States during the succeeding period (not to exceed twelve months) in response to the emergency refugee situation and such admissions shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after the appropriate consultation provided under this subsection.
(c) Admission by Attorney General of refugees; criteria; admission status of spouse or child; applicability of other statutory requirements; termination of refugee status of alien, spouse or child
(1) Subject to the numerical limitations established pursuant to subsections (a) and (b), the Attorney General may, in the Attorney General's discretion and pursuant to such regulations as the Attorney General may prescribe, admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible (except as otherwise provided under paragraph (3)) as an immigrant under this chapter.
(2)(A) A spouse or child (as defined in
(B) An unmarried alien who seeks to accompany, or follow to join, a parent granted admission as a refugee under this subsection, and who was under 21 years of age on the date on which such parent applied for refugee status under this section, shall continue to be classified as a child for purposes of this paragraph, if the alien attained 21 years of age after such application was filed but while it was pending.
(3) The provisions of paragraphs (4), (5), and (7)(A) of
(4) The refugee status of any alien (and of the spouse or child of the alien) may be terminated by the Attorney General pursuant to such regulations as the Attorney General may prescribe if the Attorney General determines that the alien was not in fact a refugee within the meaning of
(d) Oversight reporting and consultation requirements
(1) Before the start of each fiscal year the President shall report to the Committees on the Judiciary of the House of Representatives and of the Senate regarding the foreseeable number of refugees who will be in need of resettlement during the fiscal year and the anticipated allocation of refugee admissions during the fiscal year. The President shall provide for periodic discussions between designated representatives of the President and members of such committees regarding changes in the worldwide refugee situation, the progress of refugee admissions, and the possible need for adjustments in the allocation of admissions among refugees.
(2) As soon as possible after representatives of the President initiate appropriate consultation with respect to the number of refugee admissions under subsection (a) or with respect to the admission of refugees in response to an emergency refugee situation under subsection (b), the Committees on the Judiciary of the House of Representatives and of the Senate shall cause to have printed in the Congressional Record the substance of such consultation.
(3)(A) After the President initiates appropriate consultation prior to making a determination under subsection (a), a hearing to review the proposed determination shall be held unless public disclosure of the details of the proposal would jeopardize the lives or safety of individuals.
(B) After the President initiates appropriate consultation prior to making a determination, under subsection (b), that the number of refugee admissions should be increased because of an unforeseen emergency refugee situation, to the extent that time and the nature of the emergency refugee situation permit, a hearing to review the proposal to increase refugee admissions shall be held unless public disclosure of the details of the proposal would jeopardize the lives or safety of individuals.
(e) "Appropriate consultation" defined
For purposes of this section, the term "appropriate consultation" means, with respect to the admission of refugees and allocation of refugee admissions, discussions in person by designated Cabinet-level representatives of the President with members of the Committees on the Judiciary of the Senate and of the House of Representatives to review the refugee situation or emergency refugee situation, to project the extent of possible participation of the United States therein, to discuss the reasons for believing that the proposed admission of refugees is justified by humanitarian concerns or grave humanitarian concerns or is otherwise in the national interest, and to provide such members with the following information:
(1) A description of the nature of the refugee situation.
(2) A description of the number and allocation of the refugees to be admitted and an analysis of conditions within the countries from which they came.
(3) A description of the proposed plans for their movement and resettlement and the estimated cost of their movement and resettlement.
(4) An analysis of the anticipated social, economic, and demographic impact of their admission to the United States.
(5) A description of the extent to which other countries will admit and assist in the resettlement of such refugees.
(6) An analysis of the impact of the participation of the United States in the resettlement of such refugees on the foreign policy interests of the United States.
(7) Such additional information as may be appropriate or requested by such members.
To the extent possible, information described in this subsection shall be provided at least two weeks in advance of discussions in person by designated representatives of the President with such members.
(f) Training
(1) The Attorney General, in consultation with the Secretary of State, shall provide all United States officials adjudicating refugee cases under this section with the same training as that provided to officers adjudicating asylum cases under
(2) Such training shall include country-specific conditions, instruction on the internationally recognized right to freedom of religion, instruction on methods of religious persecution practiced in foreign countries, and applicable distinctions within a country between the nature of and treatment of various religious practices and believers.
(June 27, 1952, ch. 477, title II, ch. 1, §207, as added
Editorial Notes
References in Text
This chapter, referred to in subsec. (c)(1), (2)(A), was in the original, "this Act", meaning act June 27, 1952, ch. 477,
Prior Provisions
A prior section 1157, act June 27, 1952, ch. 477, title II, ch. 1, §207,
Amendments
2005—Subsec. (a)(5).
2002—Subsec. (c)(2).
1998—Subsec. (f).
1996—Subsec. (a)(5).
1991—Subsec. (c)(3).
1990—Subsec. (a)(4).
Subsec. (c)(3).
1988—Subsec. (c)(1).
Statutory Notes and Related Subsidiaries
Effective Date of 2005 Amendment
Effective Date of 2002 Amendment
Amendment by
Effective Date of 1991 Amendment
Effective Date of 1990 Amendment
Amendment by section 104(b) of
Amendment by section 603(a)(4) of
Effective Date
Section (with the exception of subsec. (c) which is effective Apr. 1, 1980) effective, except as otherwise provided, Mar. 17, 1980, and applicable to fiscal years beginning with the fiscal year beginning Oct. 1, 1979, see section 204 of
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
Iraq Refugee Crisis
"SEC. 1241. SHORT TITLE.
"This subtitle may be cited as the 'Refugee Crisis in Iraq Act of 2007'.
"SEC. 1242. PROCESSING MECHANISMS.
"(a)
"(1) aliens described in section 1243 may apply and interview for admission to the United States as refugees; and
"(2) aliens described in section 1244(b) may apply and interview for admission to United States as special immigrants.
"(b)
"(c)
"(1)
"(2)
"(d)
"SEC. 1243. UNITED STATES REFUGEE PROGRAM PROCESSING PRIORITIES.
"(a)
"(1) Iraqis who were or are employed by the United States Government, in Iraq;
"(2) Iraqis who establish to the satisfaction of the Secretary of State that they are or were employed in Iraq by—
"(A) a media or nongovernmental organization headquartered in the United States; or
"(B) an organization or entity closely associated with the United States mission in Iraq that has received United States Government funding through an official and documented contract, award, grant, or cooperative agreement; and
"(3) spouses, children, and parents whether or not accompanying or following to join, and sons, daughters, and siblings of aliens described in paragraph (1), paragraph (2), or section 1244(b)(1); and
"(4) Iraqis who are members of a religious or minority community, have been identified by the Secretary of State, or the designee of the Secretary, as a persecuted group, and have close family members (as described in section 201(b)(2)(A)(i) or 203(a) of the Immigration and Nationality Act (
"(b)
"(c)
"(d)
"(e)
"(f)
"SEC. 1244. SPECIAL IMMIGRANT STATUS FOR CERTAIN IRAQIS.
"(a)
"(1) or an agent acting on behalf of the alien, submits a petition for classification under section 203(b)(4) of such Act (
"(2) is otherwise eligible to receive an immigrant visa;
"(3) is otherwise admissible to the United States for permanent residence (excluding the grounds for inadmissibility specified in section 212(a)(4) of such Act (
"(4) cleared a background check and appropriate screening, as determined by the Secretary of Homeland Security.
"(b)
"(1)
"(A) is a citizen or national of Iraq;
"(B) was or is employed by or on behalf of the United States Government in Iraq, on or after March 20, 2003, for not less than one year;
"(C) provided faithful and valuable service to the United States Government, which is documented in a positive recommendation or evaluation, subject to paragraph (4), from the employee's senior supervisor or the person currently occupying that position, or a more senior person, if the employee's senior supervisor has left the employer or has left Iraq; and
"(D) has experienced or is experiencing an ongoing serious threat as a consequence of the alien's employment by the United States Government.
"(2)
"(A) is the spouse or child of a principal alien described in paragraph (1); and
"(B) is accompanying or following to join the principal alien in the United States.
"(3)
"(A)
"(i) was the spouse or child of a principal alien described in paragraph (1) who submitted an application to the Chief of Mission pursuant to this section or section 1059 of the National Defense Authorization Act for Fiscal Year 2006 (
"(ii) due to the death of the principal alien—
"(I) such petition was revoked or terminated (or otherwise rendered null); and
"(II) such petition would have been approved if the principal alien had survived.
"(B)
"(4)
"(A)
"(B)
"(i)
"(I) receive a written decision that provides, to the maximum extent feasible, information describing the basis for the denial, including the facts and inferences underlying the individual determination; and
"(II) be provided not more than one written appeal—
"(aa) that shall be submitted not more than 120 days after the date that the applicant receives such decision in writing; and
"(bb) that may request reopening of such decision and provide additional information, clarify existing information, or explain any unfavorable information.
"(ii)
"(I) sufficiently high security clearance to review information supporting Chief of Mission denials if an appeal of a denial is filed;
"(II) responsibility for ensuring that an applicant described in clause (i) receives the information described in clause (i)(I); and
"(III) responsibility for ensuring that every applicant is provided a reasonable opportunity to provide additional information, clarify existing information, or explain any unfavorable information pursuant to clause (i)(II).
"(5)
"(c)
"(1)
"(2)
"(3)
"(A)
"(i) the numerical limitation specified in paragraph (1) for the given fiscal year; and
"(ii) the number of principal aliens provided special immigrant status under this section during the given fiscal year.
"(B)
"(i) the numerical limitation specified in paragraph (1) for fiscal year 2012; and
"(ii) the number of principal aliens provided such status under this section during fiscal year 2012.
"(C)
"(i)
"(ii)
"(iii)
"(d)
"(e)
"(f)
"(g)
"(h)
"SEC. 1245. SENIOR COORDINATOR FOR IRAQI REFUGEES AND INTERNALLY DISPLACED PERSONS.
"(a)
"(b)
"(c)
"SEC. 1246. COUNTRIES WITH SIGNIFICANT POPULATIONS OF IRAQI REFUGEES.
"With respect to each country with a significant population of Iraqi refugees, including Iraq, Jordan, Egypt, Syria, Turkey, and Lebanon, the Secretary of State shall—
"(1) as appropriate, consult with the appropriate government officials of such countries and other countries and the United Nations High Commissioner for Refugees regarding resettlement of the most vulnerable members of such refugee populations; and
"(2) as appropriate, except where otherwise prohibited by the laws of the United States, develop mechanisms in and provide assistance to countries with a significant population of Iraqi refugees to ensure the well-being and safety of such populations in their host environments.
"SEC. 1247. MOTION TO REOPEN DENIAL OR TERMINATION OF ASYLUM.
"An alien who applied for asylum or withholding of removal and whose claim was denied on or after March 1, 2003, by an asylum officer or an immigration judge solely, or in part, on the basis of changed country conditions may, notwithstanding any other provision of law, file a motion to reopen such claim in accordance with subparagraphs (A) and (B) of section 240(c)(7) of the Immigration and Nationality Act (
"(1) is a citizen or national of Iraq; and
"(2) has remained in the United States since the date of such denial.
"SEC. 1248. REPORTS.
"(a)
"(1) expediting the processing of Iraqi refugees for resettlement, including through temporary expansion of the Refugee Corps of United States Citizenship and Immigration Services;
"(2) increasing the number of personnel of the Department of Homeland Security devoted to refugee processing in Iraq, Jordan, Egypt, Syria, Turkey, and Lebanon;
"(3) enhancing existing systems for conducting background and security checks of persons applying for special immigrant status and of persons considered Priority 2 refugees of special humanitarian concern under the refugee resettlement priority system, which enhancements shall support immigration security and provide for the orderly processing of such applications without delay; and
"(4) the projections of the Secretary, per country and per month, for the number of refugee interviews that will be conducted in fiscal year 2008 and fiscal year 2009.
"(b)
"(1) an assessment of the financial, security, and personnel considerations and resources necessary to carry out the provisions of this subtitle;
"(2) the number of aliens described in section 1243(a)(1);
"(3) the number of such aliens who have applied for special immigrant visas;
"(4) the date of such applications; and
"(5) in the case of applications pending for longer than six months, the reasons that such visas have not been expeditiously processed.
"(c)
"(1)
"(A) review internal records and databases of their respective agencies for information that can be used to verify employment of Iraqi nationals by the United States Government; and
"(B) request from each prime contractor or grantee that has performed work in Iraq since March 20, 2003, under a contract, grant, or cooperative agreement with their respective agencies that is valued in excess of $100,000 information that can be used to verify the employment of Iraqi nationals by such contractor or grantee.
"(2)
"(3)
"(d)
"(e)
"(1) the inability or unwillingness of any contractor or grantee to provide the information requested under subsection (c)(1)(B); and
"(2) the reasons for failing to provide such information.
"(f)
"(1)
"(A) the Committee on the Judiciary, the Committee on Foreign Relations, and the Committee on Armed Services of the Senate; and
"(B) the Committee on the Judiciary, the Committee on Foreign Affairs, and the Committee on Armed Services of the House of Representatives.
"(2)
"(A) enhancing existing systems for conducting background and security checks of persons applying for special immigrant status, which shall—
"(i) support immigration security; and
"(ii) provide for the orderly processing of such applications without significant delay;
"(B) the financial, security, and personnel considerations and resources necessary to carry out this subtitle;
"(C) the number of aliens who have applied for special immigrant visas under section 1244 during each month of the preceding fiscal year;
"(D) the reasons for the failure to process any applications that have been pending for longer than 9 months;
"(E) the total number of applications that are pending due to the failure—
"(i) to receive approval from the Chief of Mission;
"(ii) of U.S. Citizenship and Immigration Services to complete the adjudication of the Form I–360;
"(iii) to conduct a visa interview; or
"(iv) to issue the visa to an eligible alien;
"(F) the average wait times for an applicant at each of the stages described in subparagraph (E);
"(G) the number of denials or rejections at each of the stages described in subparagraph (E); and
"(H) the reasons for denials by the Chief of Mission based on the categories already made available to denied special immigrant visa applicants in the denial letter sent to them by the Chief of Mission.
"(g)
"(h)
"(1)
"(2)
"(A) develop proposals to improve the efficiency and effectiveness of the process for issuing special immigrant visas under this subtitle and the Afghan Allies Protection Act of 2009;
"(B) coordinate and monitor the implementation of such proposals;
"(C) include such proposals in the report required by subsection (f) and in each quarterly report required by subsection (g); and
"(D) implement appropriate actions as authorized by law to carry out the improvements described in the report required by subsection (f).
"(3)
"SEC. 1249. AUTHORIZATION OF APPROPRIATIONS.
"There are authorized to be appropriated such sums as may be necessary to carry out this subtitle."
[
[
Bring Them Home Alive Program
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Bring Them Home Alive Act of 2000'.
"SEC. 2. AMERICAN VIETNAM WAR POW/MIA ASYLUM PROGRAM.
"(a)
"(b)
"(1) any alien who—
"(A) is a national of Vietnam, Cambodia, Laos, China, or any of the independent states of the former Soviet Union; and
"(B) personally delivers into the custody of the United States Government a living American Vietnam War POW/MIA; and
"(2) any parent, spouse, or child of an alien described in paragraph (1).
"(c)
"(1)
"(A)
"(i) who is a member of a uniformed service (within the meaning of
"(ii) who is an employee (as defined in
"(B)
"(2)
"(A) was performing service in Vietnam; or
"(B) was performing service in Southeast Asia in direct support of military operations in Vietnam.
"(3)
"SEC. 3. AMERICAN KOREAN WAR POW/MIA ASYLUM PROGRAM.
"(a)
"(b)
"(1) any alien—
"(A) who is a national of North Korea, China, or any of the independent states of the former Soviet Union; and
"(B) who personally delivers into the custody of the United States Government a living American Korean War POW/MIA; and
"(2) any parent, spouse, or child of an alien described in paragraph (1).
"(c)
"(1)
"(A)
"(i) who is a member of a uniformed service (within the meaning of
"(ii) who is an employee (as defined in
"(B)
"(2)
"(3)
"(A) was performing service in the Korean peninsula; or
"(B) was performing service in Asia in direct support of military operations in the Korean peninsula.
"SEC. 3A. AMERICAN PERSIAN GULF WAR POW/MIA ASYLUM PROGRAM.
"(a)
"(b)
"(1)
"(A) any alien who—
"(i) is a national of Iraq or a nation of the Greater Middle East Region (as determined by the Attorney General in consultation with the Secretary of State); and
"(ii) personally delivers into the custody of the United States Government a living American Persian Gulf War POW/MIA; and
"(B) any parent, spouse, or child of an alien described in subparagraph (A).
"(2)
"(c)
"(1)
"(A)
"(i) who is a member of a uniformed service (within the meaning of
"(ii) who is an employee (as defined in
"(B)
"(2)
"(A) was performing service in Kuwait, Iraq, or another nation of the Greater Middle East Region; or
"(B) was performing service in the Greater Middle East Region in direct support of military operations in Kuwait or Iraq.
"(3)
"SEC. 4. BROADCASTING INFORMATION ON THE 'BRING THEM HOME ALIVE' PROGRAM.
"(a)
"(1)
"(2)
"(A) Vietnam, Cambodia, Laos, China, and North Korea;
"(B) Russia and the other independent states of the former Soviet Union; and
"(C) Iraq, Kuwait, or any other country of the Greater Middle East Region (as determined by the International Broadcasting Bureau in consultation with the Attorney General and the Secretary of State).
"(b)
"(1) at least 20 hours of the programming described in subsection (a)(1) during the 30-day period that begins 15 days after the date of enactment of this Act [Nov. 9, 2000]; and
"(2) at least 10 hours of the programming described in subsection (a)(1) in each calendar quarter during the period beginning with the first calendar quarter that begins after the date of enactment of this Act and ending five years after the date of enactment of this Act.
"(c)
"(d)
"(e)
"SEC. 5. INDEPENDENT STATES OF THE FORMER SOVIET UNION DEFINED.
"In this Act, the term 'independent states of the former Soviet Union' has the meaning given the term in section 3 of the FREEDOM Support Act (
Gender-Related Persecution Task Force
"(a)
"(b)
Establishing Categories of Aliens for Purposes of Refugee Determinations
"(a)
"(b)
"(1) For purposes of subsection (a), the Attorney General, in consultation with the Secretary of State and the Coordinator for Refugee Affairs, shall establish—
"(A) one or more categories of aliens who are or were nationals and residents of an independent state of the former Soviet Union or of Estonia, Latvia, or Lithuania and who share common characteristics that identify them as targets of persecution in that state on account of race, religion, nationality, membership in a particular social group, or political opinion,[;]
"(B) one or more categories of aliens who are or were nationals and residents of Vietnam, Laos, or Cambodia and who share common characteristics that identify them as targets of persecution in such respective foreign state on such an account; and
"(C) one or more categories of aliens who are or were nationals and residents of the Islamic Republic or Iran who, as members of a religious minority in Iran, share common characteristics that identify them as targets of persecution in that state on account of race, religion, nationality, membership in a particular social group, or political opinion.
"(2)(A) Aliens who are (or were) nationals and residents of an independent state of the former Soviet Union or of Estonia, Latvia, or Lithuania and who are Jews or Evangelical Christians shall be deemed a category of alien established under paragraph (1)(A).
"(B) Aliens who are (or were) nationals of an independent state of the former Soviet Union or of Estonia, Latvia, or Lithuania and who are current members of, and demonstrate public, active, and continuous participation (or attempted participation) in the religious activities of, the Ukrainian Catholic Church or the Ukrainian Orthodox Church, shall be deemed a category of alien established under paragraph (1)(A).
"(C) Aliens who are (or were) nationals and residents of Vietnam, Laos, or Cambodia and who are members of categories of individuals determined, by the Attorney General in accordance with 'Immigration and Naturalization Service Worldwide Guidelines for Overseas Refugee Processing' (issued by the Immigration and Naturalization Service in August 1983) shall be deemed a category of alien established under paragraph (1)(B).
"(3) Within the number of admissions of refugees allocated for for [sic] each of fiscal years 1990, 1991, and 1992 for refugees who are nationals of the Soviet Union under section 207(a)(3) of the Immigration and Nationality Act [
"(c)
"(d)
"(e)
"(1) Subsections (a) and (b) shall take effect on the date of the enactment of this Act [Nov. 21, 1989] and shall only apply to applications for refugee status submitted before October 1, 2024.
"(2) Subsection (c) shall apply to decisions made after the date of the enactment of this Act and before October 1, 2024.
"(3) Subsection (d) shall take effect on the date of the enactment of this Act and shall only apply to reapplications for refugee status submitted before October 1, 2024."
[
[
[
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[Except as otherwise provided, Secretary of State to have and exercise any authority vested by law in any official or office of Department of State and references to such officials or offices deemed to refer to Secretary of State or Department of State, as appropriate, see
El Salvadoran Refugees
Time for Determinations by President for Fiscal Year 1980
Executive Documents
Delegation of Functions
For delegation of Congressional reporting functions of President under subsec. (d) of this section, see section 1 of Ex. Ord. No. 13313, July 31, 2003, 68 F.R. 46073, set out as a note under
Ex. Ord. No. 12208. Consultations on the Admission of Refugees
Ex. Ord. No. 12208, Apr. 15, 1980, 45 F.R. 25789, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 13286, §49, Feb. 28, 2003, 68 F.R. 10628, provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, including the Refugee Act of 1980 (
1–101. Exclusive of the functions otherwise delegated, or reserved to the President, by this Order, there are hereby delegated to the Secretary of State and the Secretary of Homeland Security, or either of them, the functions of initiating and carrying out appropriate consultations with members of the Committees on the Judiciary of the Senate and of the House of Representatives for purposes of Sections 101(a)(42)(B) and 207(a), (b), (d), and (e) of the Immigration and Nationality Act, as amended (
1–102. There are reserved to the President the following functions under the Immigration and Nationality Act, as amended [
(a) To specify special circumstances for purposes of qualifying persons as refugees under Section 101(a)(42)(B) [
(b) To make determinations under Sections 207(a)(1), 207(a)(2), 207(a)(3) and 207(b) [
(c) To fix the number of refugees to be admitted under Section 207(b).
1–103. Except to the extent inconsistent with this Order, all actions previously taken pursuant to any function delegated or assigned by this Order shall be deemed to have been taken and authorized by this Order.
Ex. Ord. No. 14013. Rebuilding and Enhancing Programs To Resettle Refugees and Planning for the Impact of Climate Change on Migration
Ex. Ord. No. 14013, Feb. 4, 2021, 86 F.R. 8839, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act,
(a) USRAP and other humanitarian programs shall be administered in a manner that furthers our values as a Nation and is consistent with our domestic law, international obligations, and the humanitarian purposes expressed by the Congress in enacting the Refugee Act of 1980,
(b) USRAP should be rebuilt and expanded, commensurate with global need and the purposes described above.
(c) Delays in administering USRAP and other humanitarian programs are counter to our national interests, can raise grave humanitarian concerns, and should be minimized.
(d) Security vetting for USRAP applicants and applicants for other humanitarian programs should be improved to be more efficient, meaningful, and fair, and should be complemented by sound methods of fraud detection to ensure program integrity and protect national security.
(e) Although access to United States humanitarian programs is generally discretionary, the individuals applying for immigration benefits under these programs must be treated with dignity and respect, without improper discrimination on the basis of race, religion, national origin, or other grounds, and should be afforded procedural safeguards.
(f) United States humanitarian programs should be administered in a manner that ensures transparency and accountability and reflects the principle that reunifying families is in the national interest.
(g) My Administration shall seek opportunities to enhance access to the refugee program for people who are more vulnerable to persecution, including women, children, and other individuals who are at risk of persecution related to their gender, gender expression, or sexual orientation.
(h) Executive departments and agencies (agencies) should explore the use of all available authorities for humanitarian protection to assist individuals for whom USRAP is unavailable.
(i) To meet the challenges of restoring and expanding USRAP, the United States must innovate, including by effectively employing technology and capitalizing on community and private sponsorship of refugees, while continuing to partner with resettlement agencies for reception and placement.
(j) The Special Immigrant Visa (SIV) programs for Iraqi and Afghan allies provide humanitarian protection to nationals of Iraq and Afghanistan experiencing an ongoing, serious threat because they provided faithful and valuable service to the United States, including its troops serving in those countries. The Federal Government should ensure that these important programs are administered without undue delay.
(b) The Presidential Memorandum of March 6, 2017 (Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits, Ensuring Enforcement of All Laws for Entry Into the United States, and Increasing Transparency Among Departments and Agencies of the Federal Government and for the American People) [former
(c) Within 90 days of the date of this order [Feb. 4, 2021], the Secretary of State and the Secretary of Homeland Security shall provide a report to the President, through the Assistant to the President for National Security Affairs (APNSA), describing all agency actions, including memoranda or guidance documents, that were taken or issued in reliance on or in furtherance of the directives revoked by subsections (a) and (b) of this section. This report shall include recommendations regarding whether each action should be maintained, reversed, or modified, consistent with applicable law and as appropriate for the fair, efficient, and secure administration of the relevant humanitarian program or otherwise in the national interest.
(i) an assessment of agency compliance with existing law governing the SIV programs, including program eligibility requirements and procedures for administrative review;
(ii) an assessment of whether there are undue delays in meeting statutory benchmarks for timely adjudication of applications, including due to insufficient staffing levels;
(iii) a plan to provide training, guidance, and oversight with respect to the National Visa Center's processing of SIV applications;
(iv) a plan to track the progress of the Senior Coordinators as provided under section 1245 of the Refugee Crisis in Iraq Act of 2007 (RCIA), subtitle C of title XII of
(v) an assessment of whether adequate guidelines exist for reconsidering or reopening applications in appropriate circumstances and consistent with applicable law.
(b) The Secretary of State, in consultation with the Secretary of Defense, shall also direct a review of the procedures for Chief of Mission approval of applications with the aim of, as appropriate and consistent with applicable law:
(i) ensuring existing procedures and guidance are sufficient to permit prospective applicants a fair opportunity to apply and demonstrate eligibility;
(ii) issuing guidance that would address situations where an applicant's employer is unable or unwilling to provide verification of the applicant's "faithful and valuable service," and provide for alternative forms of verification;
(iii) revising requirements to facilitate the ability of applicants to demonstrate the existence of a qualifying contract with the United States Government and require that the supervisor verifying the applicant's "faithful and valuable service" be a United States citizen or national;
(iv) ensuring that applicants are not prejudiced by delays in verifying their employment; and
(v) implementing anti-fraud measures to ensure program integrity.
(c) Within 180 days of the date of this order, the Secretary of State shall submit to the President the results of the review described in subsection (b) of this section.
(d) Within 180 days of the date of this order, the Secretary of State, in consultation with the Secretary of Defense and the Secretary of Homeland Security, shall conduct a review and submit a report to the President identifying whether additional populations not currently provided for under section 1059 of the National Defense Authorization Act for Fiscal Year 2006,
(e) Within 180 days of the date of this order, the Secretary of State and the Secretary of Homeland Security shall ensure that appropriate policies and procedures related to the SIV programs are publicly available on their respective agency's websites, and that any revisions to such policies and procedures in the future are made publicly available on those websites within 30 days of issuance.
(i) The APNSA shall designate a National Security Council Senior Director to be responsible for coordinating the agencies and vetting partners involved in USRAP.
(ii) The Secretary of State shall designate a senior-level employee to have primary responsibility for overseeing refugee application processing, consistent with applicable law.
(iii) The Secretary of Homeland Security shall designate a senior-level employee to have primary responsibility for coordinating the review and any revision of policies and procedures regarding the vetting and adjudication of USRAP refugee applicants, including follow-to-join refugee applicants and post-decisional processing, consistent with applicable law.
(iv) The Director of the Office of Management and Budget shall assign a team of technology, process, and data experts from the United States Digital Service to assist agencies in streamlining application processing, improving the automation and effectiveness of security vetting and fraud detection, and strengthening data-driven decision-making.
(b) Within 30 days of the date of this order, the Secretary of State and the Secretary of Homeland Security shall provide the President a report on the fraud detection measures in place for USRAP. The report shall also include a plan to enhance fraud detection within components at both agencies and recommendations for the development of new anti-fraud programs, as appropriate and consistent with applicable law.
(c) The Secretary of Homeland Security, in consultation with the Secretary of State, shall promptly consider taking all appropriate actions, consistent with applicable law, to expand refugee vetting and adjudication capacity, including by:
(i) developing more efficient processes to capture and share refugee applicant biometric data; and
(ii) permitting the use of video and audio teleconferencing to conduct refugee interviews and establishing the necessary infrastructure to do so.
(d) To increase refugee adjudication capacity, the Office of Personnel Management shall, consistent with applicable law, support the use of all hiring authorities, including expanded use of direct hiring authority, for positions associated with the adjudication of refugee applications.
(e) Within 30 days of the date of this order, the heads of all agencies involved in the Security Advisory Opinion process and other inter-agency vetting processes for refugee applicants, including follow-to-join refugee applicants, shall submit data to the National Vetting Governance Board on the number of staff performing refugee security vetting, the thresholds for checks, and the rates at which checks have returned an objection. Such data shall be disaggregated by age range, gender, and nationality of the refugee applicant. The National Vetting Governance Board shall meet to consider if and how agency processes and staffing levels should change to improve security reviews and make refugee arrivals more efficient, and shall share any conclusions and recommendations with the heads of relevant agencies, including the Director of the Office of Management and Budget, in order to inform potential resourcing strategies where necessary.
(f) Within 60 days of the date of this order, agencies responsible for the Security Advisory Opinion process shall meet to consider proposals from member agencies to adjust the list of countries and other criteria that require a Security Advisory Opinion for a refugee case.
(g) The Secretary of Homeland Security, in consultation with the Secretary of State, shall consider whether to promulgate regulations and any other policies, including internal oversight mechanisms, to ensure the quality, integrity, efficiency, and fairness of the adjudication process for USRAP applicants, while also taking due account of the challenges facing refugee applicants. The Secretary of Homeland Security, in consultation with the Secretary of State, should consider adopting regulations or policies, as appropriate and consistent with applicable law, that:
(i) develop mechanisms to synthesize reliable, detailed, and current country conditions that may be relied upon, where appropriate, to make specific factual and legal determinations necessary for the adjudication of refugee applications from individuals or from individuals within a designated group of applicants;
(ii) ensure that refugee applicants have timely access to their own application records;
(iii) permit refugee applicants to have a representative at their interview at no cost to the United States Government; and
(iv) ensure, when refugee applications are denied for non-security or non-fraud-based reasons, an applicant is given a short explanation describing the basis for the denial, so that the applicant has a meaningful opportunity to present additional evidence and to request a review of the decision.
(h) The Secretary of State and the Secretary of Homeland Security shall provide the President, through the APNSA, a report describing any action taken pursuant to subsection (g) of this section within 180 days of the date such action is taken.
(i) The Secretary of Homeland Security shall ensure that adjudicators are trained in the standards governing refugee claims of women, children, and other individuals who are more vulnerable to persecution due to their age, gender, gender expression, or sexual orientation.
(j) The Secretary of State and the Secretary of Homeland Security shall consider taking actions, as appropriate and consistent with applicable law, to recognize as "spouses" for purposes of derivative status through USRAP individuals who are in committed life partnerships but who are unable to marry or to register their marriage due to restrictions in the law or practices of their country of origin, including for individuals in same-sex, interfaith, or camp-based marriages. The Secretary of State and the Secretary of Homeland Security shall provide the President a report, through the APNSA, describing any action taken pursuant to this subsection within 180 days of the date such action is taken.
(k) Within 120 days of the date of this order, the Secretary of State and the Secretary of Health and Human Services shall, as appropriate and consistent with applicable law, deliver a plan to the President, through the APNSA, to enhance the capacity of USRAP to welcome refugees by expanding the use of community sponsorship and co-sponsorship models by refugee resettlement agencies, and by entering into new public-private partnerships.
(l) The Secretary of State, in consultation with the Secretary of Homeland Security, shall consider ways to expand mechanisms under which non-governmental organizations with direct access to and knowledge of refugees abroad in camps or other settings could identify and directly refer to USRAP particularly vulnerable individuals who have a strong possibility of qualifying for admission to the United States as refugees.
(m) Within 180 days of the date of this order, the Secretary of State and the Secretary of Homeland Security shall take all appropriate steps, taking into account necessary safeguards for program integrity, to ensure that the current policies and procedures related to USRAP are publicly available on their respective websites, and that any new or revised policies and procedures are made publicly available on their websites within 30 days of their adoption.
(n) Within 180 days of the date of this order, the Secretary of State, in consultation with the Secretary of Homeland Security, and as appropriate and consistent with applicable law, shall develop options for improving USRAP applicants' ability to access relevant material from their case files on an expedited basis to inform timely appeals from adverse decisions.
(b) The plan and review described in subsection (a) of this section shall also:
(i) examine whether existing vetting processes, including the Security Advisory Opinion process, can be improved to increase efficiency and provide more effective security reviews; and
(ii) seek to bring national average processing times within the period described in
(c) Within 120 days of the date of this order, the Secretary of State, in consultation with the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence, shall submit to the President the plan described in subsection (a) of this section, including the Secretary's recommendations for process improvements.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
Presidential Determination Concerning Admission and Adjustment of Status of Refugees
Determinations by the President pursuant to this section concerning the admission and adjustment of status of refugees for particular fiscal years were contained in the following Presidential Determinations:
Presidential Determination No. 2023–13, Sept. 29, 2023, 88 F.R. 73521.
Presidential Determination No. 2022–25, Sept. 27, 2022, 87 F.R. 60547.
Presidential Determination No. 2022–02, Oct. 8, 2021, 86 F.R. 57527.
Presidential Determination No. 2021–06, May 3, 2021, 86 F.R. 24475.
Presidential Determination No. 2021–05, Apr. 16, 2021, 86 F.R. 21159.
Presidential Determination No. 2021–02, Oct. 27, 2020, 85 F.R. 71219, superseded by Presidential Determination No. 2021–05, subsec. (g), Apr. 16, 2021, 86 F.R. 21160.
Presidential Determination No. 2020–04, Nov. 1, 2019, 84 F.R. 65903.
Presidential Determination No. 2019–01, Oct. 4, 2018, 83 F.R. 55091.
Presidential Determination No. 2017–13, Sept. 29, 2017, 82 F.R. 49083.
Presidential Determination No. 2016–13, Sept. 28, 2016, 81 F.R. 70315.
Presidential Determination No. 2015–14, Sept. 29, 2015, 80 F.R. 62433.
Presidential Determination No. 2014–17, Sept. 30, 2014, 79 F.R. 69753.
Presidential Determination No. 2014–01, Oct. 2, 2013, 78 F.R. 62415.
Presidential Determination No. 2012–17, Sept. 28, 2012, 77 F.R. 61507.
Presidential Determination No. 2011–17, Sept. 30, 2011, 76 F.R. 62597.
Presidential Determination No. 2011–02, Oct. 8, 2010, 75 F.R. 75851.
Presidential Determination No. 2009–32, Sept. 30, 2009, 74 F.R. 52385.
Presidential Determination No. 2008–29, Sept. 30, 2008, 73 F.R. 58865.
Presidential Determination No. 2008–1, Oct. 2, 2007, 72 F.R. 58991.
Presidential Determination No. 2007–1, Oct. 11, 2006, 71 F.R. 64435.
Presidential Determination No. 2006–3, Oct. 24, 2005, 70 F.R. 65825.
Presidential Determination No. 2004–53, Sept. 30, 2004, 69 F.R. 60943.
Presidential Determination No. 2004–06, Oct. 21, 2003, 68 F.R. 63979.
Presidential Determination No. 03–02, Oct. 16, 2002, 67 F.R. 65469.
Presidential Determination No. 02–04, Nov. 21, 2001, 66 F.R. 63487.
Presidential Determination No. 2000–32, Sept. 29, 2000, 65 F.R. 59697.
Presidential Determination No. 99–45, Sept. 30, 1999, 64 F.R. 54505.
Presidential Determination No. 99–33, Aug. 12, 1999, 64 F.R. 47341.
Presidential Determination No. 98–39, Sept. 30, 1998, 63 F.R. 55001.
Presidential Determination No. 97–37, Sept. 30, 1997, 62 F.R. 53219.
Presidential Determination No. 96–59, Sept. 30, 1996, 61 F.R. 56869.
Presidential Determination No. 95–48, Sept. 29, 1995, 60 F.R. 53091.
Presidential Determination No. 95–1, Oct. 1, 1994, 59 F.R. 52393.
Presidential Determination No. 94–1, Oct. 1, 1993, 58 F.R. 52213.
Presidential Determination No. 93–1, Oct. 2, 1992, 57 F.R. 47253.
Presidential Determination No. 92–2, Oct. 9, 1991, 56 F.R. 51633.
Presidential Determination No. 91–3, Oct. 12, 1990, 55 F.R. 41979.
Presidential Determination No. 90–2, Oct. 6, 1989, 54 F.R. 43035.
Presidential Determination No. 89–15, June 19, 1989, 54 F.R. 31493.
Presidential Determination No. 89–2, Oct. 5, 1988, 53 F.R. 45249.
Presidential Determination No. 88–16, May 20, 1988, 53 F.R. 21405.
Presidential Determination No. 88–01, Oct. 5, 1987, 52 F.R. 42073.
Presidential Determination No. 87–1, Oct. 17, 1986, 51 F.R. 39637.
Presidential Determination No. 83–2, Oct. 11, 1982, 47 F.R. 46483.
Presidential Determination No. 82–1, Oct. 10, 1981, 46 F.R. 55233.
Presidential Determination No. 80–28, Sept. 30, 1980, 45 F.R. 68365.
Ex. Ord. No. 12208. Consultations on the Admission of Refugees
§1158. Asylum
(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable,
(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.
(B) Time limit
Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States.
(C) Previous asylum applications
Subject to subparagraph (D), paragraph (1) shall not apply to an alien if the alien has previously applied for asylum and had such application denied.
(D) Changed circumstances
An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).
(E) Applicability
Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in
(3) Limitation on judicial review
No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).
(b) Conditions for granting asylum
(1) In general
(A) Eligibility
The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of
(B) Burden of proof
(i) In general
The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of
(ii) Sustaining burden
The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
(iii) Credibility determination
Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.
(2) Exceptions
(A) In general
Paragraph (1) shall not apply to an alien if the Attorney General determines that—
(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
(ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;
(iii) there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;
(iv) there are reasonable grounds for regarding the alien as a danger to the security of the United States;
(v) the alien is described in subclause (I), (II), (III), (IV), or (VI) of
(vi) the alien was firmly resettled in another country prior to arriving in the United States.
(B) Special rules
(i) Conviction of aggravated felony
For purposes of clause (ii) of subparagraph (A), an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.
(ii) Offenses
The Attorney General may designate by regulation offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).
(C) Additional limitations
The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1).
(D) No judicial review
There shall be no judicial review of a determination of the Attorney General under subparagraph (A)(v).
(3) Treatment of spouse and children
(A) In general
A spouse or child (as defined in
(B) Continued classification of certain aliens as children
An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section, shall continue to be classified as a child for purposes of this paragraph and
(C) Initial jurisdiction
An asylum officer (as defined in
(c) Asylum status
(1) In general
In the case of an alien granted asylum under subsection (b), the Attorney General—
(A) shall not remove or return the alien to the alien's country of nationality or, in the case of a person having no nationality, the country of the alien's last habitual residence;
(B) shall authorize the alien to engage in employment in the United States and provide the alien with appropriate endorsement of that authorization; and
(C) may allow the alien to travel abroad with the prior consent of the Attorney General.
(2) Termination of asylum
Asylum granted under subsection (b) does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that—
(A) the alien no longer meets the conditions described in subsection (b)(1) owing to a fundamental change in circumstances;
(B) the alien meets a condition described in subsection (b)(2);
(C) the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien is eligible to receive asylum or equivalent temporary protection;
(D) the alien has voluntarily availed himself or herself of the protection of the alien's country of nationality or, in the case of an alien having no nationality, the alien's country of last habitual residence, by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country; or
(E) the alien has acquired a new nationality and enjoys the protection of the country of his or her new nationality.
(3) Removal when asylum is terminated
An alien described in paragraph (2) is subject to any applicable grounds of inadmissibility or deportability under section 1 1182(a) and 1227(a) of this title, and the alien's removal or return shall be directed by the Attorney General in accordance with
(d) Asylum procedure
(1) Applications
The Attorney General shall establish a procedure for the consideration of asylum applications filed under subsection (a). The Attorney General may require applicants to submit fingerprints and a photograph at such time and in such manner to be determined by regulation by the Attorney General.
(2) Employment
An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General. An applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.
(3) Fees
The Attorney General may impose fees for the consideration of an application for asylum, for employment authorization under this section, and for adjustment of status under
(4) Notice of privilege of counsel and consequences of frivolous application
At the time of filing an application for asylum, the Attorney General shall—
(A) advise the alien of the privilege of being represented by counsel and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum; and
(B) provide the alien a list of persons (updated not less often than quarterly) who have indicated their availability to represent aliens in asylum proceedings on a pro bono basis.
(5) Consideration of asylum applications
(A) Procedures
The procedure established under paragraph (1) shall provide that—
(i) asylum cannot be granted until the identity of the applicant has been checked against all appropriate records or databases maintained by the Attorney General and by the Secretary of State, including the Automated Visa Lookout System, to determine any grounds on which the alien may be inadmissible to or deportable from the United States, or ineligible to apply for or be granted asylum;
(ii) in the absence of exceptional circumstances, the initial interview or hearing on the asylum application shall commence not later than 45 days after the date an application is filed;
(iii) in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed;
(iv) any administrative appeal shall be filed within 30 days of a decision granting or denying asylum, or within 30 days of the completion of removal proceedings before an immigration judge under
(v) in the case of an applicant for asylum who fails without prior authorization or in the absence of exceptional circumstances to appear for an interview or hearing, including a hearing under
(B) Additional regulatory conditions
The Attorney General may provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with this chapter.
(6) Frivolous applications
If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application.
(7) No private right of action
Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
(e) Commonwealth of the Northern Mariana Islands
The provisions of this section and
(June 27, 1952, ch. 477, title II, ch. 1, §208, as added
Editorial Notes
References in Text
This chapter, referred to in subsec. (d)(5)(B), (6), was in the original, "this Act", meaning act June 27, 1952, ch. 477,
Amendments
2008—Subsec. (a)(2)(E).
Subsec. (b)(3)(C).
Subsec. (e).
2005—Subsec. (b)(1).
Subsec. (b)(1)(B).
Subsec. (b)(2)(A)(v).
2002—Subsec. (b)(3).
2001—Subsec. (b)(2)(A)(v).
1996—
Subsec. (a).
1994—Subsec. (e).
1990—Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2005 Amendment
"(1) The amendments made by paragraphs (1) and (2) of subsection (a) [amending this section] shall take effect as if enacted on March 1, 2003.
"(2) The amendments made by subsections (a)(3), (b), (c), and (d) [amending this section and
Effective Date of 2002 Amendment
Amendment by
Effective Date of 2001 Amendment
Amendment by
Effective Date of 1996 Amendments
Effective Date of 1990 Amendment
"(1) The amendment made by subsection (a)(1) [amending this section] shall apply to convictions entered before, on, or after the date of the enactment of this Act [Nov. 29, 1990] and to applications for asylum made on or after such date.
"(2) The amendment made by subsection (a)(2) [amending
Effective Date
Section effective Mar. 17, 1980, and applicable to fiscal years beginning with the fiscal year beginning Oct. 1, 1979, see section 204 of
Regulations
"(1)
"(2)
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
Expeditious Removal for Denied Asylum Applicants
"(a)
"(b)
"(c)
"(1) $64,000,000 for fiscal year 1995;
"(2) $90,000,000 for fiscal year 1996;
"(3) $93,000,000 for fiscal year 1997; and
"(4) $91,000,000 for fiscal year 1998."
Time for Establishment of Asylum Procedure by Attorney General
1 So in original. Probably should be "sections".
§1159. Adjustment of status of refugees
(a) Inspection and examination by Department of Homeland Security
(1) Any alien who has been admitted to the United States under
(A) whose admission has not been terminated by the Secretary of Homeland Security or the Attorney General pursuant to such regulations as the Secretary of Homeland Security or the Attorney General may prescribe,
(B) who has been physically present in the United States for at least one year, and
(C) who has not acquired permanent resident status,
shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of
(2) Any alien who is found upon inspection and examination by an immigration officer pursuant to paragraph (1) or after a hearing before an immigration judge to be admissible (except as otherwise provided under subsection (c)) as an immigrant under this chapter at the time of the alien's inspection and examination shall, notwithstanding any numerical limitation specified in this chapter, be regarded as lawfully admitted to the United States for permanent residence as of the date of such alien's arrival into the United States.
(b) Requirements for adjustment
The Secretary of Homeland Security or the Attorney General, in the Secretary's or the Attorney General's discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who—
(1) applies for such adjustment,
(2) has been physically present in the United States for at least one year after being granted asylum,
(3) continues to be a refugee within the meaning of
(4) is not firmly resettled in any foreign country, and
(5) is admissible (except as otherwise provided under subsection (c)) as an immigrant under this chapter at the time of examination for adjustment of such alien.
Upon approval of an application under this subsection, the Secretary of Homeland Security or the Attorney General shall establish a record of the alien's admission for lawful permanent residence as of the date one year before the date of the approval of the application.
(c) Coordination with section 1182
The provisions of paragraphs (4), (5), and (7)(A) of
(June 27, 1952, ch. 477, title II, ch. 1, §209, as added
Editorial Notes
References in Text
This chapter, referred to in subsecs. (a)(2) and (b)(5), was in the original, "this Act", meaning act June 27, 1952, ch. 477,
Amendments
2005—Subsec. (a)(1).
Subsec. (a)(1)(A).
Subsec. (b).
Subsec. (c).
1996—Subsec. (a)(1).
Subsec. (a)(2).
1991—Subsec. (c).
1990—Subsec. (b).
Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
Amendment by section 308(g)(3)(A), (4)(A) of
Amendment by section 371(b)(2) of
Effective Date of 1991 Amendment
Effective Date of 1990 Amendment
Amendment by section 603(a)(4) of
Effective Date
Section effective, except as otherwise provided, Mar. 17, 1980, and applicable to fiscal years beginning with the fiscal year beginning Oct. 1, 1979, see section 204 of
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
Waiver of Numerical Limitation for Certain Current Asylees; Adjustment of Certain Former Asylees
"(c)
"(d)
"(1)
"(A) who was granted asylum before the date of the enactment of this Act [Nov. 29, 1990] (regardless of whether or not such asylum has been terminated under section 208 of the Immigration and Nationality Act [
"(B) who is no longer a refugee because of a change in circumstances in a foreign state, and
"(C) who was (or would be) qualified for adjustment of status under section 209(b) of the Immigration and Nationality Act as of the date of the enactment of this Act but for paragraphs (2) and (3) thereof and but for any numerical limitation under such section.
"(2)
[Section 104(c), (d) of
§1160. Special agricultural workers
(a) Lawful residence
(1) In general
The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the Attorney General determines that the alien meets the following requirements:
(A) Application period
The alien must apply for such adjustment during the 18-month period beginning on the first day of the seventh month that begins after November 6, 1986.
(B) Performance of seasonal agricultural services and residence in the United States
The alien must establish that he has—
(i) resided in the United States, and
(ii) performed seasonal agricultural services in the United States for at least 90 man-days,
during the 12-month period ending on May 1, 1986. For purposes of the previous sentence, performance of seasonal agricultural services in the United States for more than one employer on any one day shall be counted as performance of services for only 1 man-day.
(C) Admissible as immigrant
The alien must establish that he is admissible to the United States as an immigrant, except as otherwise provided under subsection (c)(2).
(2) Adjustment to permanent residence
The Attorney General shall adjust the status of any alien provided lawful temporary resident status under paragraph (1) to that of an alien lawfully admitted for permanent residence on the following date:
(A) Group 1
Subject to the numerical limitation established under subparagraph (C), in the case of an alien who has established, at the time of application for temporary residence under paragraph (1), that the alien performed seasonal agricultural services in the United States for at least 90 man-days during each of the 12-month periods ending on May 1, 1984, 1985, and 1986, the adjustment shall occur on the first day after the end of the one-year period that begins on the later of (I) the date the alien was granted such temporary resident status, or (II) the day after the last day of the application period described in paragraph (1)(A).
(B) Group 2
In the case of aliens to which subparagraph (A) does not apply, the adjustment shall occur on the day after the last day of the two-year period that begins on the later of (I) the date the alien was granted such temporary resident status, or (II) the day after the last day of the application period described in paragraph (1)(A).
(C) Numerical limitation
Subparagraph (A) shall not apply to more than 350,000 aliens. If more than 350,000 aliens meet the requirements of such subparagraph, such subparagraph shall apply to the 350,000 aliens whose applications for adjustment were first filed under paragraph (1) and subparagraph (B) shall apply to the remaining aliens.
(3) Termination of temporary residence
(A) During the period of temporary resident status granted an alien under paragraph (1), the Attorney General may terminate such status only upon a determination under this chapter that the alien is deportable.
(B) Before any alien becomes eligible for adjustment of status under paragraph (2), the Attorney General may deny adjustment to permanent status and provide for termination of the temporary resident status granted such alien under paragraph (1) if—
(i) the Attorney General finds by a preponderance of the evidence that the adjustment to temporary resident status was the result of fraud or willful misrepresentation as set out in
(ii) the alien commits an act that (I) makes the alien inadmissible to the United States as an immigrant, except as provided under subsection (c)(2), or (II) is convicted of a felony or 3 or more misdemeanors committed in the United States.
(4) Authorized travel and employment during temporary residence
During the period an alien is in lawful temporary resident status granted under this subsection, the alien has the right to travel abroad (including commutation from a residence abroad) and shall be granted authorization to engage in employment in the United States and shall be provided an "employment authorized" endorsement or other appropriate work permit, in the same manner as for aliens lawfully admitted for permanent residence.
(5) In general
Except as otherwise provided in this subsection, an alien who acquires the status of an alien lawfully admitted for temporary residence under paragraph (1), such status not having changed, is considered to be an alien lawfully admitted for permanent residence (as described in
(b) Applications for adjustment of status
(1) To whom may be made
(A) Within the United States
The Attorney General shall provide that applications for adjustment of status under subsection (a) may be filed—
(i) with the Attorney General, or
(ii) with a designated entity (designated under paragraph (2)), but only if the applicant consents to the forwarding of the application to the Attorney General.
(B) Outside the United States
The Attorney General, in cooperation with the Secretary of State, shall provide a procedure whereby an alien may apply for adjustment of status under subsection (a)(1) at an appropriate consular office outside the United States. If the alien otherwise qualifies for such adjustment, the Attorney General shall provide such documentation of authorization to enter the United States and to have the alien's status adjusted upon entry as may be necessary to carry out the provisions of this section.
(2) Designation of entities to receive applications
For purposes of receiving applications under this section, the Attorney General—
(A) shall designate qualified voluntary organizations and other qualified State, local, community, farm labor organizations, and associations of agricultural employers, and
(B) may designate such other persons as the Attorney General determines are qualified and have substantial experience, demonstrated competence, and traditional long-term involvement in the preparation and submittal of applications for adjustment of status under
(3) Proof of eligibility
(A) In general
An alien may establish that he meets the requirement of subsection (a)(1)(B)(ii) through government employment records, records supplied by employers or collective bargaining organizations, and such other reliable documentation as the alien may provide. The Attorney General shall establish special procedures to credit properly work in cases in which an alien was employed under an assumed name.
(B) Documentation of work history
(i) An alien applying for adjustment of status under subsection (a)(1) has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of man-days (as required under subsection (a)(1)(B)(ii)).
(ii) If an employer or farm labor contractor employing such an alien has kept proper and adequate records respecting such employment, the alien's burden of proof under clause (i) may be met by securing timely production of those records under regulations to be promulgated by the Attorney General.
(iii) An alien can meet such burden of proof if the alien establishes that the alien has in fact performed the work described in subsection (a)(1)(B)(ii) by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference. In such a case, the burden then shifts to the Attorney General to disprove the alien's evidence with a showing which negates the reasonableness of the inference to be drawn from the evidence.
(4) Treatment of applications by designated entities
Each designated entity must agree to forward to the Attorney General applications filed with it in accordance with paragraph (1)(A)(ii) but not to forward to the Attorney General applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Attorney General.
(5) Limitation on access to information
Files and records prepared for purposes of this section by designated entities operating under this section are confidential and the Attorney General and the Service shall not have access to such files or records relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to paragraph (6) of this subsection.
(6) Confidentiality of information
(A) In general
Except as provided in this paragraph, neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—
(i) use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application, including a determination under subsection (a)(3)(B), or for enforcement of paragraph (7);
(ii) make any publication whereby the information furnished by any particular individual can be identified; or
(iii) permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.
(B) Required disclosures
The Attorney General shall provide information furnished under this section, and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, when such information is requested in writing by such entity, or to an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).
(C) Construction
(i) In general
Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Service pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.
(ii) Criminal convictions
Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes.
(D) Crime
Whoever knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be fined not more than $10,000.
(7) Penalties for false statements in applications
(A) Criminal penalty
Whoever—
(i) files an application for adjustment of status under this section and knowingly and willfully falsifies, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, or
(ii) creates or supplies a false writing or document for use in making such an application,
shall be fined in accordance with title 18 or imprisoned not more than five years, or both.
(B) Exclusion
An alien who is convicted of a crime under subparagraph (A) shall be considered to be inadmissible to the United States on the ground described in
(c) Waiver of numerical limitations and certain grounds for exclusion
(1) Numerical limitations do not apply
The numerical limitations of
(2) Waiver of grounds for exclusion
In the determination of an alien's admissibility under subsection (a)(1)(C)—
(A) Grounds of exclusion not applicable
The provisions of paragraphs (5) and (7)(A) of
(B) Waiver of other grounds
(i) In general
Except as provided in clause (ii), the Attorney General may waive any other provision of
(ii) Grounds that may not be waived
The following provisions of
(I) Paragraphs (2)(A) and (2)(B) (relating to criminals).
(II) Paragraph (4) (relating to aliens likely to become public charges).
(III) Paragraph (2)(C) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marihuana.
(IV) Paragraph (3) (relating to security and related grounds), other than subparagraph (E) thereof.
(C) Special rule for determination of public charge
An alien is not ineligible for adjustment of status under this section due to being inadmissible under
(d) Temporary stay of exclusion or deportation and work authorization for certain applicants
(1) Before application period
The Attorney General shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1) and who can establish a nonfrivolous case of eligibility to have his status adjusted under subsection (a) (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien—
(A) may not be excluded or deported, and
(B) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit.
(2) During application period
The Attorney General shall provide that in the case of an alien who presents a nonfrivolous application for adjustment of status under subsection (a) during the application period, and until a final determination on the application has been made in accordance with this section, the alien—
(A) may not be excluded or deported, and
(B) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit.
(3) Use of application fees to offset program costs
No application fees collected by the Service pursuant to this subsection may be used by the Service to offset the costs of the special agricultural worker legalization program until the Service implements the program consistent with the statutory mandate as follows:
(A) During the application period described in subsection (a)(1)(A) the Service may grant temporary admission to the United States, work authorization, and provide an "employment authorized" endorsement or other appropriate work permit to any alien who presents a preliminary application for adjustment of status under subsection (a) at a designated port of entry on the southern land border. An alien who does not enter through a port of entry is subject to deportation and removal as otherwise provided in this chapter.
(B) During the application period described in subsection (a)(1)(A) any alien who has filed an application for adjustment of status within the United States as provided in subsection (b)(1)(A) pursuant to the provision of 8 CFR section 210.1(j) is subject to paragraph (2) of this subsection.
(C) A preliminary application is defined as a fully completed and signed application with fee and photographs which contains specific information concerning the performance of qualifying employment in the United States and the documentary evidence which the applicant intends to submit as proof of such employment. The applicant must be otherwise admissible to the United States and must establish to the satisfaction of the examining officer during an interview that his or her claim to eligibility for special agriculture worker status is credible.
(e) Administrative and judicial review
(1) Administrative and judicial review
There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
(2) Administrative review
(A) Single level of administrative appellate review
The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination.
(B) Standard for review
Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.
(3) Judicial review
(A) Limitation to review of exclusion or deportation
There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under
(B) Standard for judicial review
Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.
(f) Temporary disqualification of newly legalized aliens from receiving aid to families with dependent children
During the five-year period beginning on the date an alien was granted lawful temporary resident status under subsection (a), and notwithstanding any other provision of law, the alien is not eligible for assistance under a State program funded under part A of title IV of the Social Security Act [
(g) Treatment of special agricultural workers
For all purposes (subject to subsections (a)(5) and (f)) an alien whose status is adjusted under this section to that of an alien lawfully admitted for permanent residence, such status not having changed, shall be considered to be an alien lawfully admitted for permanent residence (within the meaning of
(h) "Seasonal agricultural services" defined
In this section, the term "seasonal agricultural services" means the performance of field work related to planting, cultural practices, cultivating, growing and harvesting of fruits and vegetables of every kind and other perishable commodities, as defined in regulations by the Secretary of Agriculture.
(June 27, 1952, ch. 477, title II, ch. 1, §210, as added
Editorial Notes
References in Text
This chapter, referred to in subsecs. (a)(3)(A) and (d)(3)(A), was in the original, "this Act", meaning act June 27, 1952, ch. 477,
The Social Security Act, referred to in subsec. (f), is act Aug. 14, 1935, ch. 531,
Amendments
1996—Subsec. (b)(5).
Subsec. (b)(6).
Subsec. (e)(3)(A).
Subsec. (f).
1994—Subsec. (d)(3).
Subsec. (d)(3)(B).
1991—Subsec. (b)(7)(B).
Subsec. (d)(3).
Subsec. (d)(3)(A).
Subsec. (d)(3)(B).
1990—Subsec. (a)(3)(B)(i).
Subsec. (c)(2)(A).
Subsec. (c)(2)(B)(ii)(I).
Subsec. (c)(2)(B)(ii)(II).
Subsec. (c)(2)(B)(ii)(III).
Subsec. (c)(2)(B)(ii)(IV).
Subsec. (c)(2)(B)(ii)(V).
Subsec. (c)(2)(C).
1989—Subsec. (a)(3).
Subsec. (b)(6)(A).
1988—Subsec. (g).
1987—Subsec. (d)(3).
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendments
Amendment by section 308(g)(2)(B) of
Amendment by
Effective Date of 1994 Amendment
Amendment by section 219(d) of
Effective Date of 1991 Amendment
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
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
Commission on Agricultural Workers
§1161. Repealed. Pub. L. 103–416, title II, §219(ee)(1), Oct. 25, 1994, 108 Stat. 4319
Section, act June 27, 1952, ch. 477, title II, ch. 1, §210A, as added Nov. 6, 1986,