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8 U.S. Code § 1182 - Inadmissible aliens
U.S. Code
Notes
(a) C
Except as otherwise provided in this chapter, aliens who are
inadmissible under the following paragraphs are ineligible to receive
visas and ineligible to be admitted to the United States:
(1) H
-
(A) In general
Any alien—
(i) who is determined (in accordance with regulations prescribed
by the Secretary of Health and Human Services) to have a
communicable disease of public health significance; [1]
(ii) except as provided in subparagraph (C), who seeks
admission as an immigrant, or who seeks adjustment of status to
the status of an alien lawfully admitted for permanent residence,
and who has failed to present documentation of having received
vaccination against vaccine-preventable diseases, which shall
include at least the following diseases: mumps, measles, rubella,
polio, tetanus and diphtheria toxoids, pertussis, influenza type B
and hepatitis B, and any other vaccinations against vaccinepreventable diseases recommended by the Advisory Committee
for Immunization Practices,
(iii) who is determined (in accordance with regulations
prescribed by the Secretary of Health and Human Services in
consultation with the Attorney General)—
(I) to have a physical or mental disorder and behavior
associated with the disorder that may pose, or has posed, a
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threat to the property, safety, or welfare of the alien or
others, or
(II) to have had a physical or mental disorder and a history
of behavior associated with the disorder, which behavior has
posed a threat to the property, safety, or welfare of the alien
or others and which behavior is likely to recur or to lead to
other harmful behavior, or
(iv) who is determined (in accordance with regulations
prescribed by the Secretary of Health and Human Services) to be
a drug abuser or addict,
is inadmissible.
(B) Waiver authorized
For provision authorizing waiver of certain clauses of subparagraph
(A), see subsection (g).
(C) Exception from immunization requirement for adopted
children 10 years of age or younger
Clause (ii) of subparagraph (A) shall not apply to a child who—
(i) is 10 years of age or younger,
(ii) is described in subparagraph (F) or (G) of section 1101(b)(1)
of this title; 1 and
(iii) is seeking an immigrant visa as an immediate relative under
section 1151(b) of this title,
if, prior to the admission of the child, an adoptive parent or
prospective adoptive parent of the child, who has sponsored the
child for admission as an immediate relative, has executed an
affidavit stating that the parent is aware of the provisions of
subparagraph (A)(ii) and will ensure that, within 30 days of the
child’s admission, or at the earliest time that is medically
appropriate, the child will receive the vaccinations identified in
such subparagraph.
(2) C
(A) Conviction of certain crimes
(i) In general
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Except as provided in clause (ii), any alien convicted of, or
who admits having committed, or who admits committing
acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely
political offense) or an attempt or conspiracy to commit such
a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any
law or regulation of a State, the United States, or a foreign
country relating to a controlled substance (as defined in
section 802 of title 21),
is inadmissible.
(ii) Exception
Clause (i)(I) shall not apply to an alien who committed only
one crime if—
(I) the crime was committed when the alien was under 18
years of age, and the crime was committed (and the alien
released from any confinement to a prison or correctional
institution imposed for the crime) more than 5 years before
the date of application for a visa or other documentation and
the date of application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the
alien was convicted (or which the alien admits having
committed or of which the acts that the alien admits having
committed constituted the essential elements) did not exceed
imprisonment for one year and, if the alien was convicted of
such crime, the alien was not sentenced to a term of
imprisonment in excess of 6 months (regardless of the extent
to which the sentence was ultimately executed).
(B) Multiple criminal convictions
Any alien convicted of 2 or more offenses (other than purely political
offenses), regardless of whether the conviction was in a single trial
or whether the offenses arose from a single scheme of misconduct
and regardless of whether the offenses involved moral turpitude, for
which the aggregate sentences to confinement were 5 years or
more is inadmissible.
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(C) Controlled substance traffickers
Any alien who the consular officer or the Attorney General
knows or has reason to believe—
(i) is or has been an illicit trafficker in any controlled substance
or in any listed chemical (as defined in section 802 of title 21), or
is or has been a knowing aider, abettor, assister, conspirator, or
colluder with others in the illicit trafficking in any such controlled
or listed substance or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter of an alien inadmissible
under clause (i), has, within the previous 5 years, obtained any
financial or other benefit from the illicit activity of that alien, and
knew or reasonably should have known that the financial or
other benefit was the product of such illicit activity,
is inadmissible.
(D) Prostitution and commercialized vice
Any alien who—
(i) is coming to the United States solely, principally, or
incidentally to engage in prostitution, or has engaged in
prostitution within 10 years of the date of application for a visa,
admission, or adjustment of status,
(ii) directly or indirectly procures or attempts to procure, or
(within 10 years of the date of application for a visa, admission,
or adjustment of status) procured or attempted to procure or to
import, prostitutes or persons for the purpose of prostitution, or
receives or (within such 10-year period) received, in whole or in
part, the proceeds of prostitution, or
(iii) is coming to the United States to engage in any other
unlawful commercialized vice, whether or not related to
prostitution,
is inadmissible.
(E) Certain aliens involved in serious criminal activity who
have asserted immunity from prosecution
Any alien—
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(i) who has committed in the United States at any time a serious
criminal offense (as defined in section 1101(h) of this title),
(ii) for whom immunity from criminal jurisdiction was exercised
with respect to that offense,
(iii) who as a consequence of the offense and exercise of
immunity has departed from the United States, and
(iv) who has not subsequently submitted fully to the jurisdiction
of the court in the United States having jurisdiction with respect
to that offense,
is inadmissible.
(F) Waiver authorized
For provision authorizing waiver of certain subparagraphs of this
paragraph, see subsection (h).
(G) Foreign government officials who have committed
particularly severe violations of religious freedom
Any alien who, while serving as a foreign government official, was
responsible for or directly carried out, at any time, particularly
severe violations of religious freedom, as defined in section 6402 of
title 22, is inadmissible.
(H) Significant traffickers in persons
(i) In general
Any alien who commits or conspires to commit human trafficking
offenses in the United States or outside the United States, or
who the consular officer, the Secretary of Homeland Security,
the Secretary of State, or the Attorney General knows or has
reason to believe is or has been a knowing aider, abettor,
assister, conspirator, or colluder with such a trafficker in severe
forms of trafficking in persons, as defined in the section 7102 of
title 22, is inadmissible.
(ii) Beneficiaries of trafficking
Except as provided in clause (iii), any alien who the consular
officer or the Attorney General knows or has reason to believe is
the spouse, son, or daughter of an alien inadmissible under
clause (i), has, within the previous 5 years, obtained any
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financial or other benefit from the illicit activity of that alien, and
knew or reasonably should have known that the financial or
other benefit was the product of such illicit activity, is
inadmissible.
(iii) Exception for certain sons and daughters
Clause (ii) shall not apply to a son or daughter who was a child
at the time he or she received the benefit described in such
clause.
(I) Money laundering
Any alien—
(i) who a consular officer or the Attorney General knows, or has
reason to believe, has engaged, is engaging, or seeks to enter
the United States to engage, in an offense which is described in
section 1956 or 1957 of title 18 (relating to laundering of
monetary instruments); or
(ii) who a consular officer or the Attorney General knows is, or
has been, a knowing aider, abettor, assister, conspirator, or
colluder with others in an offense which is described in such
section;
is inadmissible.
(3) S
(A) In general
Any alien who a consular officer or the Attorney General knows,
or has reasonable ground to believe, seeks to enter the United
States to engage solely, principally, or incidentally in—
(i) any activity (I) to violate any law of the United States
relating to espionage or sabotage or (II) to violate or evade any
law prohibiting the export from the United States of goods,
technology, or sensitive information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which is the opposition to, or the
control or overthrow of, the Government of the United States by
force, violence, or other unlawful means,
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is inadmissible.
(B) Terrorist activities
(i) In general
Any alien who—
(I) has engaged in a terrorist activity;
(II) a consular officer, the Attorney General, or the Secretary
of Homeland Security knows, or has reasonable ground to
believe, is engaged in or is likely to engage after entry in any
terrorist activity (as defined in clause (iv));
(III) has, under circumstances indicating an intention to
cause death or serious bodily harm, incited terrorist activity;
(IV) is a representative (as defined in clause (v)) of—
(aa) a terrorist organization (as defined in clause (vi)); or
(bb) a political, social, or other group that endorses or
espouses terrorist activity;
(V) is a member of a terrorist organization described in
subclause (I) or (II) of clause (vi);
(VI) is a member of a terrorist organization described in
clause (vi)(III), unless the alien can demonstrate by clear and
convincing evidence that the alien did not know, and should
not reasonably have known, that the organization was a
terrorist organization;
(VII) endorses or espouses terrorist activity or persuades
others to endorse or espouse terrorist activity or support a
terrorist organization;
(VIII) has received military-type training (as defined in
section 2339D(c)(1) of title 18) from or on behalf of any
organization that, at the time the training was received, was
a terrorist organization (as defined in clause (vi)); or
(IX) is the spouse or child of an alien who is inadmissible
under this subparagraph, if the activity causing the alien to
be found inadmissible occurred within the last 5 years,
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is inadmissible. An alien who is an officer, official,
representative, or spokesman of the Palestine Liberation
Organization is considered, for purposes of this chapter, to be
engaged in a terrorist activity.
(ii) Exception
Subclause (IX) of clause (i) does not apply to a spouse or
child—
(I) who did not know or should not reasonably have known
of the activity causing the alien to be found inadmissible
under this section; or
(II) whom the consular officer or Attorney General has
reasonable grounds to believe has renounced the activity
causing the alien to be found inadmissible under this section.
(iii) “Terrorist activity” defined
As used in this chapter, the term “terrorist activity” means
any activity which is unlawful under the laws of the place
where it is committed (or which, if it had been committed in
the United States, would be unlawful under the laws of the
United States or any State) and which involves any of the
following:
(I) The highjacking or sabotage of any conveyance (including
an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure,
or continue to detain, another individual in order to compel a
third person (including a governmental organization) to do or
abstain from doing any act as an explicit or implicit condition
for the release of the individual seized or detained.
(III) A violent attack upon an internationally protected
person (as defined in section 1116(b)(4) of title 18) or upon
the liberty of such a person.
(IV) An assassination.
(V) The use of any—
(a) biological agent, chemical agent, or nuclear weapon or
device, or
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(b) explosive, firearm, or other weapon or dangerous
device (other than for mere personal monetary gain),
with intent to endanger, directly or indirectly, the safety of
one or more individuals or to cause substantial damage to
property.
(VI) A threat, attempt, or conspiracy to do any of the
foregoing.
(iv) “Engage in terrorist activity” defined
As used in this chapter, the term “engage in terrorist activity”
means, in an individual capacity or as a member of an
organization—
(I) to commit or to incite to commit, under circumstances
indicating an intention to cause death or serious bodily injury,
a terrorist activity;
(II) to prepare or plan a terrorist activity;
(III) to gather information on potential targets for terrorist
activity;
(IV) to solicit funds or other things of value for—
(aa) a terrorist activity;
(bb) a terrorist organization described in clause (vi)(I) or
(vi)(II); or
(cc) a terrorist organization described in clause (vi)(III),
unless the solicitor can demonstrate by clear and
convincing evidence that he did not know, and should not
reasonably have known, that the organization was a
terrorist organization;
(V) to solicit any individual—
(aa) to engage in conduct otherwise described in this
subsection;
(bb) for membership in a terrorist organization described
in clause (vi)(I) or (vi)(II); or
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(cc) for membership in a terrorist organization described
in clause (vi)(III) unless the solicitor can demonstrate by
clear and convincing evidence that he did not know, and
should not reasonably have known, that the organization
was a terrorist organization; or
(VI) to commit an act that the actor knows, or reasonably
should know, affords material support, including a safe house,
transportation, communications, funds, transfer of funds or
other material financial benefit, false documentation or
identification, weapons (including chemical, biological, or
radiological weapons), explosives, or training—
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably
should know, has committed or plans to commit a terrorist
activity;
(cc) to a terrorist organization described in subclause (I)
or (II) of clause (vi) or to any member of such an
organization; or
(dd) to a terrorist organization described in clause (vi)
(III), or to any member of such an organization, unless
the actor can demonstrate by clear and convincing
evidence that the actor did not know, and should not
reasonably have known, that the organization was a
terrorist organization.
(v) “Representative” defined
As used in this paragraph, the term “representative” includes an
officer, official, or spokesman of an organization, and any person
who directs, counsels, commands, or induces an organization or
its members to engage in terrorist activity.
(vi) “Terrorist organization” defined
As used in this section, the term “terrorist organization”
means an organization—
(I) designated under section 1189 of this title;
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(II) otherwise designated, upon publication in the Federal
Register, by the Secretary of State in consultation with or
upon the request of the Attorney General or the Secretary of
Homeland Security, as a terrorist organization, after finding
that the organization engages in the activities described in
subclauses (I) through (VI) of clause (iv); or
(III) that is a group of two or more individuals, whether
organized or not, which engages in, or has a subgroup which
engages in, the activities described in subclauses (I) through
(VI) of clause (iv).
(C) Foreign policy
(i) In general
An alien whose entry or proposed activities in the United States
the Secretary of State has reasonable ground to believe would
have potentially serious adverse foreign policy consequences for
the United States is inadmissible.
(ii) Exception for officials
An alien who is an official of a foreign government or a purported
government, or who is a candidate for election to a foreign
government office during the period immediately preceding the
election for that office, shall not be excludable or subject to
restrictions or conditions on entry into the United States under
clause (i) solely because of the alien’s past, current, or expected
beliefs, statements, or associations, if such beliefs, statements,
or associations would be lawful within the United States.
(iii) Exception for other aliens
An alien, not described in clause (ii), shall not be excludable or
subject to restrictions or conditions on entry into the United
States under clause (i) because of the alien’s past, current, or
expected beliefs, statements, or associations, if such beliefs,
statements, or associations would be lawful within the United
States, unless the Secretary of State personally determines that
the alien’s admission would compromise a compelling United
States foreign policy interest.
(iv) Notification of determinations
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If a determination is made under clause (iii) with respect to an
alien, the Secretary of State must notify on a timely basis the
chairmen of the Committees on the Judiciary and Foreign Affairs
of the House of Representatives and of the Committees on the
Judiciary and Foreign Relations of the Senate of the identity of
the alien and the reasons for the determination.
(D) Immigrant membership in totalitarian party
(i) In general
Any immigrant who is or has been a member of or affiliated with
the Communist or any other totalitarian party (or subdivision or
affiliate thereof), domestic or foreign, is inadmissible.
(ii) Exception for involuntary membership
Clause (i) shall not apply to an alien because of membership or
affiliation if the alien establishes to the satisfaction of the
consular officer when applying for a visa (or to the satisfaction of
the Attorney General when applying for admission) that the
membership or affiliation is or was involuntary, or is or was
solely when under 16 years of age, by operation of law, or for
purposes of obtaining employment, food rations, or other
essentials of living and whether necessary for such purposes.
(iii) Exception for past membership
Clause (i) shall not apply to an alien because of membership
or affiliation if the alien establishes to the satisfaction of the
consular officer when applying for a visa (or to the
satisfaction of the Attorney General when applying for
admission) that—
(I) the membership or affiliation terminated at least—
(a) 2 years before the date of such application, or
(b) 5 years before the date of such application, in the
case of an alien whose membership or affiliation was with
the party controlling the government of a foreign state
that is a totalitarian dictatorship as of such date, and
(II) the alien is not a threat to the security of the United
States.
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(iv) Exception for close family members
The Attorney General may, in the Attorney General’s discretion,
waive the application of clause (i) in the case of an immigrant
who is the parent, spouse, son, daughter, brother, or sister of a
citizen of the United States or a spouse, son, or daughter of an
alien lawfully admitted for permanent residence for humanitarian
purposes, to assure family unity, or when it is otherwise in the
public interest if the immigrant is not a threat to the security of
the United States.
(E) Participants in Nazi persecution, genocide, or the
commission of any act of torture or extrajudicial killing
(i) Participation in Nazi persecutions
Any alien who, during the period beginning on March 23,
1933, and ending on May 8, 1945, under the direction of, or
in association with—
(I) the Nazi government of Germany,
(II) any government in any area occupied by the military
forces of the Nazi government of Germany,
(III) any government established with the assistance or
cooperation of the Nazi government of Germany, or
(IV) any government which was an ally of the Nazi
government of Germany,
ordered, incited, assisted, or otherwise participated in the
persecution of any person because of race, religion, national
origin, or political opinion is inadmissible.
(ii) Participation in genocide
Any alien who ordered, incited, assisted, or otherwise
participated in genocide, as defined in section 1091(a) of title 18,
is inadmissible.
(iii) Commission of acts of torture or extrajudicial killings
Any alien who, outside the United States, has committed,
ordered, incited, assisted, or otherwise participated in the
commission of—
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(I) any act of torture, as defined in section 2340 of title 18;
or
(II) under color of law of any foreign nation, any extrajudicial
killing, as defined in section 3(a) of the Torture Victim
Protection Act of 1991 (28 U.S.C. 1350 note),
is inadmissible.
(F) Association with terrorist organizations
Any alien who the Secretary of State, after consultation with the
Attorney General, or the Attorney General, after consultation with
the Secretary of State, determines has been associated with a
terrorist organization and intends while in the United States to
engage solely, principally, or incidentally in activities that could
endanger the welfare, safety, or security of the United States is
inadmissible.
(G) Recruitment or use of child soldiers
Any alien who has engaged in the recruitment or use of child
soldiers in violation of section 2442 of title 18 is inadmissible.
(4) P
(A) In general
Any alien who, in the opinion of the consular officer at the time of
application for a visa, or in the opinion of the Attorney General at
the time of application for admission or adjustment of status, is
likely at any time to become a public charge is inadmissible.
(B) Factors to be taken into account
(i) In determining whether an alien is inadmissible under this
paragraph, the consular officer or the Attorney General shall at a
minimum consider the alien’s—
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial status; and
(V) education and skills.
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(ii) In addition to the factors under clause (i), the consular
officer or the Attorney General may also consider any affidavit of
support under section 1183a of this title for purposes of
exclusion under this paragraph.
(C) Family-sponsored immigrants
Any alien who seeks admission or adjustment of status under a
visa number issued under section 1151(b)(2) or 1153(a) of this
title is inadmissible under this paragraph unless—
(i) the alien has obtained—
(I) status as a spouse or a child of a United States citizen
pursuant to clause (ii), (iii), or (iv) of section 1154(a)(1)(A)
of this title;
(II) classification pursuant to clause (ii) or (iii) of section
1154(a)(1)(B) of this title; or
(III) classification or status as a VAWA self-petitioner; or
(ii) the person petitioning for the alien’s admission (and any
additional sponsor required under section 1183a(f) of this title or
any alternative sponsor permitted under paragraph (5)(B) of
such section) has executed an affidavit of support described in
section 1183a of this title with respect to such alien.
(D) Certain employment-based immigrants
Any alien who seeks admission or adjustment of status under a visa
number issued under section 1153(b) of this title by virtue of a
classification petition filed by a relative of the alien (or by an entity
in which such relative has a significant ownership interest) is
inadmissible under this paragraph unless such relative has executed
an affidavit of support described in section 1183a of this title with
respect to such alien.
(E) Special rule for qualified alien victims
Subparagraphs (A), (B), and (C) shall not apply to an alien who
—
(i) is a VAWA self-petitioner;
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(ii) is an applicant for, or is granted, nonimmigrant status under
section 1101(a)(15)(U) of this title; or
(iii) is a qualified alien described in section 1641(c) of this title.
(5) L
(A) Labor certification
(i) In general
Any alien who seeks to enter the United States for the
purpose of performing skilled or unskilled labor is
inadmissible, unless the Secretary of Labor has determined
and certified to the Secretary of State and the Attorney
General that—
(I) there are not sufficient workers who are able, willing,
qualified (or equally qualified in the case of an alien described
in clause (ii)) and available at the time of application for a
visa and admission to the United States and at the place
where the alien is to perform such skilled or unskilled labor,
and
(II) the employment of such alien will not adversely affect
the wages and working conditions of workers in the United
States similarly employed.
(ii) Certain aliens subject to special rule
For purposes of clause (i)(I), an alien described in this clause
is an alien who—
(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the arts.
(iii) Professional athletes
(I) In general
A certification made under clause (i) with respect to a
professional athlete shall remain valid with respect to the
athlete after the athlete changes employer, if the new
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employer is a team in the same sport as the team which
employed the athlete when the athlete first applied for the
certification.
(II) “Professional athlete” defined
For purposes of subclause (I), the term “professional
athlete” means an individual who is employed as an
athlete by—
(aa) a team that is a member of an association of 6 or
more professional sports teams whose total combined
revenues exceed $10,000,000 per year, if the association
governs the conduct of its members and regulates the
contests and exhibitions in which its member teams
regularly engage; or
(bb) any minor league team that is affiliated with such an
association.
(iv) Long delayed adjustment applicants
A certification made under clause (i) with respect to an individual
whose petition is covered by section 1154(j) of this title shall
remain valid with respect to a new job accepted by the individual
after the individual changes jobs or employers if the new job is in
the same or a similar occupational classification as the job for
which the certification was issued.
(B) Unqualified physicians
An alien who is a graduate of a medical school not accredited by a
body or bodies approved for the purpose by the Secretary of
Education (regardless of whether such school of medicine is in the
United States) and who is coming to the United States principally to
perform services as a member of the medical profession is
inadmissible, unless the alien (i) has passed parts I and II of the
National Board of Medical Examiners Examination (or an equivalent
examination as determined by the Secretary of Health and Human
Services) and (ii) is competent in oral and written English. For
purposes of the previous sentence, an alien who is a graduate of a
medical school shall be considered to have passed parts I and II of
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the National Board of Medical Examiners if the alien was fully and
permanently licensed to practice medicine in a State on January 9,
1978, and was practicing medicine in a State on that date.
(C) Uncertified foreign health-care workers
Subject to subsection (r), any alien who seeks to enter the
United States for the purpose of performing labor as a healthcare worker, other than a physician, is inadmissible unless the
alien presents to the consular officer, or, in the case of an
adjustment of status, the Attorney General, a certificate from
the Commission on Graduates of Foreign Nursing Schools, or a
certificate from an equivalent independent credentialing
organization approved by the Attorney General in consultation
with the Secretary of Health and Human Services, verifying that
—
(i) the alien’s education, training, license, and experience—
(I) meet all applicable statutory and regulatory requirements
for entry into the United States under the classification
specified in the application;
(II) are comparable with that required for an American
health-care worker of the same type; and
(III) are authentic and, in the case of a license,
unencumbered;
(ii) the alien has the level of competence in oral and written
English considered by the Secretary of Health and Human
Services, in consultation with the Secretary of Education, to be
appropriate for health care work of the kind in which the alien
will be engaged, as shown by an appropriate score on one or
more nationally recognized, commercially available, standardized
assessments of the applicant’s ability to speak and write; and
(iii) if a majority of States licensing the profession in which the
alien intends to work recognize a test predicting the success on
the profession’s licensing or certification examination, the alien
has passed such a test or has passed such an examination.
For purposes of clause (ii), determination of the standardized
tests required and of the minimum scores that are appropriate
are within the sole discretion of the Secretary of Health and
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Human Services and are not subject to further administrative or
judicial review.
(D) Application of grounds
The grounds for inadmissibility of aliens under subparagraphs (A)
and (B) shall apply to immigrants seeking admission or adjustment
of status under paragraph (2) or (3) of section 1153(b) of this title.
(6) I
(A) Aliens present without admission or parole
(i) In general
An alien present in the United States without being admitted or
paroled, or who arrives in the United States at any time or place
other than as designated by the Attorney General, is
inadmissible.
(ii) Exception for certain battered women and children
Clause (i) shall not apply to an alien who demonstrates that
—
(I) the alien is a VAWA self-petitioner;
(II)
(a) the alien has been battered or subjected to extreme
cruelty by a spouse or parent, or by a member of the
spouse’s or parent’s family residing in the same household
as the alien and the spouse or parent consented or
acquiesced to such battery or cruelty, or (b) the alien’s
child has been battered or subjected to extreme cruelty by
a spouse or parent of the alien (without the active
participation of the alien in the battery or cruelty) or by a
member of the spouse’s or parent’s family residing in the
same household as the alien when the spouse or parent
consented to or acquiesced in such battery or cruelty and
the alien did not actively participate in such battery or
cruelty, and
(III) there was a substantial connection between the battery
or cruelty described in subclause (I) or (II) and the alien’s
unlawful entry into the United States.
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(B) Failure to attend removal proceeding
Any alien who without reasonable cause fails or refuses to attend or
remain in attendance at a proceeding to determine the alien’s
inadmissibility or deportability and who seeks admission to the
United States within 5 years of such alien’s subsequent departure or
removal is inadmissible.
(C) Misrepresentation
(i) In general
Any alien who, by fraud or willfully misrepresenting a material
fact, seeks to procure (or has sought to procure or has procured)
a visa, other documentation, or admission into the United States
or other benefit provided under this chapter is inadmissible.
(ii) Falsely claiming citizenship
(I) In general
Any alien who falsely represents, or has falsely represented,
himself or herself to be a citizen of the United States for any
purpose or benefit under this chapter (including section
1324a of this title) or any other Federal or State law is
inadmissible.
(II) Exception
In the case of an alien making a representation described in
subclause (I), if each natural parent of the alien (or, in the
case of an adopted alien, each adoptive parent of the alien) is
or was a citizen (whether by birth or naturalization), the alien
permanently resided in the United States prior to attaining
the age of 16, and the alien reasonably believed at the time
of making such representation that he or she was a citizen,
the alien shall not be considered to be inadmissible under any
provision of this subsection based on such representation.
(iii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (i).
(D) Stowaways
Any alien who is a stowaway is inadmissible.
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(E) Smugglers
(i) In general
Any alien who at any time knowingly has encouraged, induced,
assisted, abetted, or aided any other alien to enter or to try to
enter the United States in violation of law is inadmissible.
(ii) Special rule in the case of family reunification
Clause (i) shall not apply in the case of alien who is an eligible
immigrant (as defined in section 301(b)(1) of the Immigration
Act of 1990), was physically present in the United States on May
5, 1988, and is seeking admission as an immediate relative or
under section 1153(a)(2) of this title (including under section
112 of the Immigration Act of 1990) or benefits under section
301(a) of the Immigration Act of 1990 if the alien, before May 5,
1988, has encouraged, induced, assisted, abetted, or aided only
the alien’s spouse, parent, son, or daughter (and no other
individual) to enter the United States in violation of law.
(iii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)
(11).
(F) Subject of civil penalty
(i) In general
An alien who is the subject of a final order for violation of section
1324c of this title is inadmissible.
(ii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)
(12).
(G) Student visa abusers
An alien who obtains the status of a nonimmigrant under section
1101(a)(15)(F)(i) of this title and who violates a term or condition
of such status under section 1184(l) [2] of this title is inadmissible
until the alien has been outside the United States for a continuous
period of 5 years after the date of the violation.
(7) D
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(A) Immigrants
(i) In general
Except as otherwise specifically provided in this chapter, any
immigrant at the time of application for admission—
(I) who is not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing identification card, or
other valid entry document required by this chapter, and a
valid unexpired passport, or other suitable travel document,
or document of identity and nationality if such document is
required under the regulations issued by the Attorney General
under section 1181(a) of this title, or
(II) whose visa has been issued without compliance with the
provisions of section 1153 of this title,
is inadmissible.
(ii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (k).
(B) Nonimmigrants
(i) In general
Any nonimmigrant who—
(I) is not in possession of a passport valid for a minimum of
six months from the date of the expiration of the initial period
of the alien’s admission or contemplated initial period of stay
authorizing the alien to return to the country from which the
alien came or to proceed to and enter some other country
during such period, or
(II) is not in possession of a valid nonimmigrant visa or
border crossing identification card at the time of application
for admission,
is inadmissible.
(ii) General waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)
(4).
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(iii) Guam and Northern Mariana Islands visa waiver
For provision authorizing waiver of clause (i) in the case of
visitors to Guam or the Commonwealth of the Northern Mariana
Islands, see subsection (l).
(iv) Visa waiver program
For authority to waive the requirement of clause (i) under a
program, see section 1187 of this title.
(8) I
(A) In general
Any immigrant who is permanently ineligible to citizenship is
inadmissible.
(B) Draft evaders
Any person who has departed from or who has remained outside the
United States to avoid or evade training or service in the armed
forces in time of war or a period declared by the President to be a
national emergency is inadmissible, except that this subparagraph
shall not apply to an alien who at the time of such departure was a
nonimmigrant and who is seeking to reenter the United States as a
nonimmigrant.
(9) A
(A) Certain aliens previously removed
(i) Arriving aliens
Any alien who has been ordered removed under section 1225(b)
(1) of this title or at the end of proceedings under section 1229a
of this title initiated upon the alien’s arrival in the United States
and who again seeks admission within 5 years of the date of
such removal (or within 20 years in the case of a second or
subsequent removal or at any time in the case of an alien
convicted of an aggravated felony) is inadmissible.
(ii) Other aliens
Any alien not described in clause (i) who—
(I) has been ordered removed under section 1229a of this
title or any other provision of law, or
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(II) departed the United States while an order of removal
was outstanding,
and who seeks admission within 10 years of the date of such
alien’s departure or removal (or within 20 years of such date in
the case of a second or subsequent removal or at any time in
the case of an alien convicted of an aggravated felony) is
inadmissible.
(iii) Exception
Clauses (i) and (ii) shall not apply to an alien seeking admission
within a period if, prior to the date of the alien’s reembarkation
at a place outside the United States or attempt to be admitted
from foreign contiguous territory, the Attorney General has
consented to the alien’s reapplying for admission.
(B) Aliens unlawfully present
(i) In general
Any alien (other than an alien lawfully admitted for
permanent residence) who—
(I) was unlawfully present in the United States for a period of
more than 180 days but less than 1 year, voluntarily departed
the United States (whether or not pursuant to section
1254a(e) [3] of this title) prior to the commencement of
proceedings under section 1225(b)(1) of this title or section
1229a of this title, and again seeks admission within 3 years
of the date of such alien’s departure or removal, or
(II) has been unlawfully present in the United States for one
year or more, and who again seeks admission within 10 years
of the date of such alien’s departure or removal from the
United States,
is inadmissible.
(ii) Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be
unlawfully present in the United States if the alien is present in
the United States after the expiration of the period of stay
authorized by the Attorney General or is present in the United
States without being admitted or paroled.
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(iii) Exceptions
(I) Minors
No period of time in which an alien is under 18 years of age
shall be taken into account in determining the period of
unlawful presence in the United States under clause (i).
(II) Asylees
No period of time in which an alien has a bona fide application
for asylum pending under section 1158 of this title shall be
taken into account in determining the period of unlawful
presence in the United States under clause (i) unless the alien
during such period was employed without authorization in the
United States.
(III) Family unity
No period of time in which the alien is a beneficiary of family
unity protection pursuant to section 301 of the Immigration
Act of 1990 shall be taken into account in determining the
period of unlawful presence in the United States under clause
(i).
(IV) Battered women and children
Clause (i) shall not apply to an alien who would be described
in paragraph (6)(A)(ii) if “violation of the terms of the alien’s
nonimmigrant visa” were substituted for “unlawful entry into
the United States” in subclause (III) of that paragraph.
(V) Victims of a severe form of trafficking in persons
Clause (i) shall not apply to an alien who demonstrates that
the severe form of trafficking (as that term is defined in
section 7102 of title 22) was at least one central reason for
the alien’s unlawful presence in the United States.
(iv) Tolling for good cause
In the case of an alien who—
(I) has been lawfully admitted or paroled into the United
States,
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(II) has filed a nonfrivolous application for a change or
extension of status before the date of expiration of the period
of stay authorized by the Attorney General, and
(III) has not been employed without authorization in the
United States before or during the pendency of such
application,
the calculation of the period of time specified in clause (i)(I)
shall be tolled during the pendency of such application, but not
to exceed 120 days.
(v) Waiver
The Attorney General has sole discretion to waive clause (i) in
the case of an immigrant who is the spouse or son or daughter of
a United States citizen or of an alien lawfully admitted for
permanent residence, if it is established to the satisfaction of the
Attorney General that the refusal of admission to such immigrant
alien would result in extreme hardship to the citizen or lawfully
resident spouse or parent of such alien. No court shall have
jurisdiction to review a decision or action by the Attorney
General regarding a waiver under this clause.
(C) Aliens unlawfully present after previous immigration
violations
(i) In general
Any alien who—
(I) has been unlawfully present in the United States for an
aggregate period of more than 1 year, or
(II) has been ordered removed under section 1225(b)(1) of
this title, section 1229a of this title, or any other provision of
law,
and who enters or attempts to reenter the United States
without being admitted is inadmissible.
(ii) Exception
Clause (i) shall not apply to an alien seeking admission more
than 10 years after the date of the alien’s last departure from the
United States if, prior to the alien’s reembarkation at a place
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outside the United States or attempt to be readmitted from a
foreign contiguous territory, the Secretary of Homeland Security
has consented to the alien’s reapplying for admission.
(iii) Waiver
The Secretary of Homeland Security may waive the
application of clause (i) in the case of an alien who is a VAWA
self-petitioner if there is a connection between—
(I) the alien’s battering or subjection to extreme cruelty; and
(II) the alien’s removal, departure from the United States,
reentry or reentries into the United States; or attempted
reentry into the United States.
(10) M
(A) Practicing polygamists
Any immigrant who is coming to the United States to practice
polygamy is inadmissible.
(B) Guardian required to accompany helpless alien
Any alien—
(i) who is accompanying another alien who is inadmissible and
who is certified to be helpless from sickness, mental or physical
disability, or infancy pursuant to section 1222(c) of this title, and
(ii) whose protection or guardianship is determined to be
required by the alien described in clause (i),
is inadmissible.
(C) International child abduction
(i) In general
Except as provided in clause (ii), any alien who, after entry of an
order by a court in the United States granting custody to a
person of a United States citizen child who detains or retains the
child, or withholds custody of the child, outside the United States
from the person granted custody by that order, is inadmissible
until the child is surrendered to the person granted custody by
that order.
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(ii) Aliens supporting abductors and relatives of abductors
Any alien who—
(I) is known by the Secretary of State to have intentionally
assisted an alien in the conduct described in clause (i),
(II) is known by the Secretary of State to be intentionally
providing material support or safe haven to an alien described
in clause (i), or
(III) is a spouse (other than the spouse who is the parent of
the abducted child), child (other than the abducted child),
parent, sibling, or agent of an alien described in clause (i), if
such person has been designated by the Secretary of State at
the Secretary’s sole and unreviewable discretion, is
inadmissible until the child described in clause (i) is
surrendered to the person granted custody by the order
described in that clause, and such person and child are
permitted to return to the United States or such person’s
place of residence.
(iii) Exceptions
Clauses (i) and (ii) shall not apply—
(I) to a government official of the United States who is acting
within the scope of his or her official duties;
(II) to a government official of any foreign government if the
official has been designated by the Secretary of State at the
Secretary’s sole and unreviewable discretion; or
(III) so long as the child is located in a foreign state that is a
party to the Convention on the Civil Aspects of International
Child Abduction, done at The Hague on October 25, 1980.
(D) Unlawful voters
(i) In general
Any alien who has voted in violation of any Federal, State, or
local constitutional provision, statute, ordinance, or regulation is
inadmissible.
(ii) Exception
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In the case of an alien who voted in a Federal, State, or local
election (including an initiative, recall, or referendum) in
violation of a lawful restriction of voting to citizens, if each
natural parent of the alien (or, in the case of an adopted alien,
each adoptive parent of the alien) is or was a citizen (whether by
birth or naturalization), the alien permanently resided in the
United States prior to attaining the age of 16, and the alien
reasonably believed at the time of such violation that he or she
was a citizen, the alien shall not be considered to be inadmissible
under any provision of this subsection based on such violation.
(E) Former citizens who renounced citizenship to avoid
taxation
Any alien who is a former citizen of the United States who officially
renounces United States citizenship and who is determined by the
Attorney General to have renounced United States citizenship for the
purpose of avoiding taxation by the United States is inadmissible.
(b) N
(1) Subject to paragraphs (2) and (3), if an alien’s application for a
visa, for admission to the United States, or for adjustment of status is
denied by an immigration or consular officer because the officer
determines the alien to be inadmissible under subsection (a), the
officer shall provide the alien with a timely written notice that—
(A) states the determination, and
(B) lists the specific provision or provisions of law under which the
alien is inadmissible or adjustment [4] of status.
(2) The Secretary of State may waive the requirements of paragraph
(1) with respect to a particular alien or any class or classes of
inadmissible aliens.
(3) Paragraph (1) does not apply to any alien inadmissible under
paragraph (2) or (3) of subsection (a).
(c) R
1996, 110 S
.P
. L. 104–208,
. C,
III, § 304( ), S
. 30,
. 3009–597
(d) T
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(1) The Attorney General shall determine whether a ground for
inadmissibility exists with respect to a nonimmigrant described in
section 1101(a)(15)(S) of this title. The Attorney General, in the
Attorney General’s discretion, may waive the application of subsection
(a) (other than paragraph (3)(E)) in the case of a nonimmigrant
described in section 1101(a)(15)(S) of this title, if the Attorney General
considers it to be in the national interest to do so. Nothing in this
section shall be regarded as prohibiting the Immigration and
Naturalization Service from instituting removal proceedings against an
alien admitted as a nonimmigrant under section 1101(a)(15)(S) of this
title for conduct committed after the alien’s admission into the United
States, or for conduct or a condition that was not disclosed to the
Attorney General prior to the alien’s admission as a nonimmigrant
under section 1101(a)(15)(S) of this title.
(2) Repealed. Pub. L. 101–649, title VI, § 601(d)(2)(A), Nov. 29, 1990,
104 Stat. 5076.
(3)
(A) Except as provided in this subsection, an alien (i) who is
applying for a nonimmigrant visa and is known or believed by the
consular officer to be ineligible for such visa under subsection (a)
(other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C),
and clauses (i) and (ii) of paragraph (3)(E) of such subsection),
may, after approval by the Attorney General of a recommendation
by the Secretary of State or by the consular officer that the alien be
admitted temporarily despite his inadmissibility, be granted such a
visa and may be admitted into the United States temporarily as a
nonimmigrant in the discretion of the Attorney General, or (ii) who
is inadmissible under subsection (a) (other than paragraphs (3)(A)
(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of
paragraph (3)(E) of such subsection), but who is in possession of
appropriate documents or is granted a waiver thereof and is
seeking admission, may be admitted into the United States
temporarily as a nonimmigrant in the discretion of the Attorney
General. The Attorney General shall prescribe conditions, including
exaction of such bonds as may be necessary, to control and
regulate the admission and return of inadmissible aliens applying
for temporary admission under this paragraph.
(B)
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(i) The Secretary of State, after consultation with the Attorney
General and the Secretary of Homeland Security, or the
Secretary of Homeland Security, after consultation with the
Secretary of State and the Attorney General, may determine in
such Secretary’s sole unreviewable discretion that subsection
(a)(3)(B) shall not apply with respect to an alien within the
scope of that subsection or that subsection (a)(3)(B)(vi)(III)
shall not apply to a group within the scope of that subsection,
except that no such waiver may be extended to an alien who is
within the scope of subsection (a)(3)(B)(i)(II), no such waiver
may be extended to an alien who is a member or representative
of, has voluntarily and knowingly engaged in or endorsed or
espoused or persuaded others to endorse or espouse or support
terrorist activity on behalf of, or has voluntarily and knowingly
received military-type training from a terrorist organization that
is described in subclause (I) or (II) of subsection (a)(3)(B)(vi),
and no such waiver may be extended to a group that has
engaged terrorist activity against the United States or another
democratic country or that has purposefully engaged in a
pattern or practice of terrorist activity that is directed at
civilians. Such a determination shall neither prejudice the ability
of the United States Government to commence criminal or civil
proceedings involving a beneficiary of such a determination or
any other person, nor create any substantive or procedural right
or benefit for a beneficiary of such a determination or any other
person. Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, or any other
habeas corpus provision, and sections 1361 and 1651 of such
title, no court shall have jurisdiction to review such a
determination or revocation except in a proceeding for review of
a final order of removal pursuant to section 1252 of this title,
and review shall be limited to the extent provided in section
1252(a)(2)(D). The Secretary of State may not exercise the
discretion provided in this clause with respect to an alien at any
time during which the alien is the subject of pending removal
proceedings under section 1229a of this title.
(ii) Not later than 90 days after the end of each fiscal year, the
Secretary of State and the Secretary of Homeland Security shall
each provide to the Committees on the Judiciary of the House of
Representatives and of the Senate, the Committee on
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International Relations of the House of Representatives, the
Committee on Foreign Relations of the Senate, and the
Committee on Homeland Security of the House of
Representatives a report on the aliens to whom such Secretary
has applied clause (i). Within one week of applying clause (i) to
a group, the Secretary of State or the Secretary of Homeland
Security shall provide a report to such Committees.
(4) Either or both of the requirements of paragraph (7)(B)(i) of
subsection (a) may be waived by the Attorney General and the
Secretary of State acting jointly (A) on the basis of unforeseen
emergency in individual cases, or (B) on the basis of reciprocity with
respect to nationals of foreign contiguous territory or of adjacent
islands and residents thereof having a common nationality with such
nationals, or (C) in the case of aliens proceeding in immediate and
continuous transit through the United States under contracts
authorized in section 1223(c) of this title.
(5)
(A) The Attorney General may, except as provided in subparagraph
(B) or in section 1184(f) of this title, in his discretion parole into
the United States temporarily under such conditions as he may
prescribe only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit any alien applying for
admission to the United States, but such parole of such alien shall
not be regarded as an admission of the alien and when the
purposes of such parole shall, in the opinion of the Attorney
General, have been served the alien shall forthwith return or be
returned to the custody from which he was paroled and thereafter
his case shall continue to be dealt with in the same manner as that
of any other applicant for admission to the United States.
(B) The Attorney General may not parole into the United States an
alien who is a refugee unless the Attorney General determines that
compelling reasons in the public interest with respect to that
particular alien require that the alien be paroled into the United
States rather than be admitted as a refugee under section 1157 of
this title.
(6) Repealed. Pub. L. 101–649, title VI, § 601(d)(2)(A), Nov. 29, 1990,
104 Stat. 5076.
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(7) The provisions of subsection (a) (other than paragraph (7)) shall
be applicable to any alien who shall leave Guam, the Commonwealth of
the Northern Mariana Islands, Puerto Rico, or the Virgin Islands of the
United States, and who seeks to enter the continental United States or
any other place under the jurisdiction of the United States. The
Attorney General shall by regulations provide a method and procedure
for the temporary admission to the United States of the aliens
described in this proviso.[5] Any alien described in this paragraph, who
is denied admission to the United States, shall be immediately removed
in the manner provided by section 1231(c) of this title.
(8) Upon a basis of reciprocity accredited officials of foreign
governments, their immediate families, attendants, servants, and
personal employees may be admitted in immediate and continuous
transit through the United States without regard to the provisions of
this section except paragraphs (3)(A), (3)(B), (3)(C), and (7)(B) of
subsection (a) of this section.
(9) , (10) Repealed. Pub. L. 101–649, title VI, § 601(d)(2)(A), Nov. 29,
1990, 104 Stat. 5076.
(11) The Attorney General may, in his discretion for humanitarian
purposes, to assure family unity, or when it is otherwise in the public
interest, waive application of clause (i) of subsection (a)(6)(E) in the
case of any alien lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an order of
removal, and who is otherwise admissible to the United States as a
returning resident under section 1181(b) of this title and in the case of
an alien seeking admission or adjustment of status as an immediate
relative or immigrant under section 1153(a) of this title (other than
paragraph (4) thereof), if the alien has encouraged, induced, assisted,
abetted, or aided only an individual who at the time of such action was
the alien’s spouse, parent, son, or daughter (and no other individual)
to enter the United States in violation of law.
(12) The Attorney General may, in the discretion of the Attorney
General for humanitarian purposes or to assure family unity, waive
application of clause (i) of subsection (a)(6)(F)—
(A) in the case of an alien lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not
under an order of deportation or removal and who is otherwise
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admissible to the United States as a returning resident under
section 1181(b) of this title, and
(B) in the case of an alien seeking admission or adjustment of
status under section 1151(b)(2)(A) of this title or under section
1153(a) of this title,
if no previous civil money penalty was imposed against the alien
under section 1324c of this title and the offense was committed
solely to assist, aid, or support the alien’s spouse or child (and not
another individual). No court shall have jurisdiction to review a
decision of the Attorney General to grant or deny a waiver under
this paragraph.
(13)
(A) The Secretary of Homeland Security shall determine whether a
ground for inadmissibility exists with respect to a nonimmigrant
described in section 1101(a)(15)(T) of this title, except that the
ground for inadmissibility described in subsection (a)(4) shall not
apply with respect to such a nonimmigrant.
(B) In addition to any other waiver that may be available under
this section, in the case of a nonimmigrant described in section
1101(a)(15)(T) of this title, if the Secretary of Homeland Security
considers it to be in the national interest to do so, the Secretary of
Homeland Security, in the Attorney General’s [6] discretion, may
waive the application of—
(i) subsection (a)(1); and
(ii) any other provision of subsection (a) (excluding paragraphs
(3), (4), (10)(C), and (10(E)) [7] if the activities rendering the
alien inadmissible under the provision were caused by, or were
incident to, the victimization described in section 1101(a)(15)(T)
(i)(I) of this title.
(14) The Secretary of Homeland Security shall determine whether a
ground of inadmissibility exists with respect to a nonimmigrant
described in section 1101(a)(15)(U) of this title. The Secretary of
Homeland Security, in the Attorney General’s 6 discretion, may waive
the application of subsection (a) (other than paragraph (3)(E)) in the
case of a nonimmigrant described in section 1101(a)(15)(U) of this
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title, if the Secretary of Homeland Security considers it to be in the
public or national interest to do so.
(e) E
;
;
No person admitted under section 1101(a)(15)(J) of this title or acquiring
such status after admission (i) whose participation in the program for
which he came to the United States was financed in whole or in part,
directly or indirectly, by an agency of the Government of the United States
or by the government of the country of his nationality or his last residence,
(ii) who at the time of admission or acquisition of status under section
1101(a)(15)(J) of this title was a national or resident of a country which
the Director of the United States Information Agency, pursuant to
regulations prescribed by him, had designated as clearly requiring the
services of persons engaged in the field of specialized knowledge or skill in
which the alien was engaged, or (iii) who came to the United States or
acquired such status in order to receive graduate medical education or
training, shall be eligible to apply for an immigrant visa, or for permanent
residence, or for a nonimmigrant visa under section 1101(a)(15)(H) or
section 1101(a)(15)(L) of this title until it is established that such person
has resided and been physically present in the country of his nationality or
his last residence for an aggregate of at least two years following
departure from the United States: Provided, That upon the favorable
recommendation of the Director, pursuant to the request of an interested
United States Government agency (or, in the case of an alien described in
clause (iii), pursuant to the request of a State Department of Public Health,
or its equivalent), or of the Commissioner of Immigration and
Naturalization after he has determined that departure from the United
States would impose exceptional hardship upon the alien’s spouse or child
(if such spouse or child is a citizen of the United States or a lawfully
resident alien), or that the alien cannot return to the country of his
nationality or last residence because he would be subject to persecution on
account of race, religion, or political opinion, the Attorney General may
waive the requirement of such two-year foreign residence abroad in the
case of any alien whose admission to the United States is found by the
Attorney General to be in the public interest except that in the case of a
waiver requested by a State Department of Public Health, or its equivalent,
or in the case of a waiver requested by an interested United States
Government agency on behalf of an alien described in clause (iii), the
waiver shall be subject to the requirements of section 1184(l) of this title:
And provided further, That, except in the case of an alien described in
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clause (iii), the Attorney General may, upon the favorable recommendation
of the Director, waive such two-year foreign residence requirement in any
case in which the foreign country of the alien’s nationality or last residence
has furnished the Director a statement in writing that it has no objection to
such waiver in the case of such alien.
(f) S
P
Whenever the President finds that the entry of any aliens or of any class of
aliens into the United States would be detrimental to the interests of the
United States, he may by proclamation, and for such period as he shall
deem necessary, suspend the entry of all aliens or any class of aliens as
immigrants or nonimmigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate. Whenever the Attorney
General finds that a commercial airline has failed to comply with
regulations of the Attorney General relating to requirements of airlines for
the detection of fraudulent documents used by passengers traveling to the
United States (including the training of personnel in such detection), the
Attorney General may suspend the entry of some or all aliens transported
to the United States by such airline.
(g) B
The Attorney General may waive the application of—
(1) subsection (a)(1)(A)(i) in the case of any alien who—
(A) is the spouse or the unmarried son or daughter, or the minor
unmarried lawfully adopted child, of a United States citizen, or of an
alien lawfully admitted for permanent residence, or of an alien who
has been issued an immigrant visa,
(B) has a son or daughter who is a United States citizen, or an alien
lawfully admitted for permanent residence, or an alien who has been
issued an immigrant visa; or
(C) is a VAWA self-petitioner,
in accordance with such terms, conditions, and controls, if any,
including the giving of bond, as the Attorney General, in the
discretion of the Attorney General after consultation with the
Secretary of Health and Human Services, may by regulation
prescribe;
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(2) subsection (a)(1)(A)(ii) in the case of any alien—
(A) who receives vaccination against the vaccine-preventable
disease or diseases for which the alien has failed to present
documentation of previous vaccination,
(B) for whom a civil surgeon, medical officer, or panel physician (as
those terms are defined by section 34.2 of title 42 of the Code of
Federal Regulations) certifies, according to such regulations as the
Secretary of Health and Human Services may prescribe, that such
vaccination would not be medically appropriate, or
(C) under such circumstances as the Attorney General provides by
regulation, with respect to whom the requirement of such a
vaccination would be contrary to the alien’s religious beliefs or moral
convictions; or
(3) subsection (a)(1)(A)(iii) in the case of any alien, in accordance with
such terms, conditions, and controls, if any, including the giving of
bond, as the Attorney General, in the discretion of the Attorney General
after consultation with the Secretary of Health and Human Services,
may by regulation prescribe.
(h) W
( )(2)(A)( )(I), (II), (B), (D),
(E)
The Attorney General may, in his discretion, waive the application of
subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and
subparagraph (A)(i)(II) of such subsection insofar as it relates to a
single offense of simple possession of 30 grams or less of marijuana if
—
(1)
(A) in the case of any immigrant it is established to the satisfaction
of the Attorney General that—
(i) the alien is inadmissible only under subparagraph (D)(i) or
(D)(ii) of such subsection or the activities for which the alien is
inadmissible occurred more than 15 years before the date of the
alien’s application for a visa, admission, or adjustment of status,
(ii) the admission to the United States of such alien would not
be contrary to the national welfare, safety, or security of the
United States, and
(iii) the alien has been rehabilitated; or
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(B) in the case of an immigrant who is the spouse, parent, son, or
daughter of a citizen of the United States or an alien lawfully
admitted for permanent residence if it is established to the
satisfaction of the Attorney General that the alien’s denial of
admission would result in extreme hardship to the United States
citizen or lawfully resident spouse, parent, son, or daughter of such
alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and pursuant to such terms,
conditions and procedures as he may by regulations prescribe, has
consented to the alien’s applying or reapplying for a visa, for admission
to the United States, or adjustment of status.
No waiver shall be provided under this subsection in the case of an
alien who has been convicted of (or who has admitted committing acts
that constitute) murder or criminal acts involving torture, or an
attempt or conspiracy to commit murder or a criminal act involving
torture. No waiver shall be granted under this subsection in the case
of an alien who has previously been admitted to the United States as
an alien lawfully admitted for permanent residence if either since the
date of such admission the alien has been convicted of an aggravated
felony or the alien has not lawfully resided continuously in the United
States for a period of not less than 7 years immediately preceding the
date of initiation of proceedings to remove the alien from the United
States. No court shall have jurisdiction to review a decision of the
Attorney General to grant or deny a waiver under this subsection.
(i) A
(1) The Attorney General may, in the discretion of the Attorney
General, waive the application of clause (i) of subsection (a)(6)(C) in
the case of an immigrant who is the spouse, son, or daughter of a
United States citizen or of an alien lawfully admitted for permanent
residence if it is established to the satisfaction of the Attorney General
that the refusal of admission to the United States of such immigrant
alien would result in extreme hardship to the citizen or lawfully resident
spouse or parent of such an alien or, in the case of a VAWA selfpetitioner, the alien demonstrates extreme hardship to the alien or the
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alien’s United States citizen, lawful permanent resident, or qualified
alien parent or child.
(2) No court shall have jurisdiction to review a decision or action of the
Attorney General regarding a waiver under paragraph (1).
(j) L
(1) The additional requirements referred to in section 1101(a)(15)(J)
of this title for an alien who is coming to the United States under a
program under which he will receive graduate medical education or
training are as follows:
(A) A school of medicine or of one of the other health professions,
which is accredited by a body or bodies approved for the purpose by
the Secretary of Education, has agreed in writing to provide the
graduate medical education or training under the program for which
the alien is coming to the United States or to assume responsibility
for arranging for the provision thereof by an appropriate public or
nonprofit private institution or agency, except that, in the case of
such an agreement by a school of medicine, any one or more of its
affiliated hospitals which are to participate in the provision of the
graduate medical education or training must join in the agreement.
(B) Before making such agreement, the accredited school has been
satisfied that the alien (i) is a graduate of a school of medicine
which is accredited by a body or bodies approved for the purpose by
the Secretary of Education (regardless of whether such school of
medicine is in the United States); or (ii)(I) has passed parts I and II
of the National Board of Medical Examiners Examination (or an
equivalent examination as determined by the Secretary of Health
and Human Services), (II) has competency in oral and written
English, (III) will be able to adapt to the educational and cultural
environment in which he will be receiving his education or training,
and (IV) has adequate prior education and training to participate
satisfactorily in the program for which he is coming to the United
States. For the purposes of this subparagraph, an alien who is a
graduate of a medical school shall be considered to have passed
parts I and II of the National Board of Medical Examiners
examination if the alien was fully and permanently licensed to
practice medicine in a State on January 9, 1978, and was practicing
medicine in a State on that date.
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(C) The alien has made a commitment to return to the country of
his nationality or last residence upon completion of the education or
training for which he is coming to the United States, and the
government of the country of his nationality or last residence has
provided a written assurance, satisfactory to the Secretary of Health
and Human Services, that there is a need in that country for
persons with the skills the alien will acquire in such education or
training.
(D) The duration of the alien’s participation in the program of
graduate medical education or training for which the alien is coming
to the United States is limited to the time typically required to
complete such program, as determined by the Director of the United
States Information Agency at the time of the alien’s admission into
the United States, based on criteria which are established in
coordination with the Secretary of Health and Human Services and
which take into consideration the published requirements of the
medical specialty board which administers such education or
training program; except that—
(i) such duration is further limited to seven years unless the
alien has demonstrated to the satisfaction of the Director that
the country to which the alien will return at the end of such
specialty education or training has an exceptional need for an
individual trained in such specialty, and
(ii) the alien may, once and not later than two years after the
date the alien is admitted to the United States as an exchange
visitor or acquires exchange visitor status, change the alien’s
designated program of graduate medical education or training if
the Director approves the change and if a commitment and
written assurance with respect to the alien’s new program have
been provided in accordance with subparagraph (C).
(E) The alien furnishes the Attorney General each year with an
affidavit (in such form as the Attorney General shall prescribe) that
attests that the alien (i) is in good standing in the program of
graduate medical education or training in which the alien is
participating, and (ii) will return to the country of his nationality or
last residence upon completion of the education or training for
which he came to the United States.
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(2) An alien who is a graduate of a medical school and who is coming
to the United States to perform services as a member of the medical
profession may not be admitted as a nonimmigrant under section
1101(a)(15)(H)(i)(b) of this title unless—
(A) the alien is coming pursuant to an invitation from a public or
nonprofit private educational or research institution or agency in the
United States to teach or conduct research, or both, at or for such
institution or agency, or
(B)
(i) the alien has passed the Federation licensing examination
(administered by the Federation of State Medical Boards of the
United States) or an equivalent examination as determined by
the Secretary of Health and Human Services, and
(ii)
(I) has competency in oral and written English or (II) is a
graduate of a school of medicine which is accredited by a
body or bodies approved for the purpose by the Secretary of
Education (regardless of whether such school of medicine is
in the United States).
(3) Omitted.
(k) A
G
’
Any alien, inadmissible from the United States under paragraph (5)(A) or
(7)(A)(i) of subsection (a), who is in possession of an immigrant visa may,
if otherwise admissible, be admitted in the discretion of the Attorney
General if the Attorney General is satisfied that inadmissibility was not
known to, and could not have been ascertained by the exercise of
reasonable diligence by, the immigrant before the time of departure of the
vessel or aircraft from the last port outside the United States and outside
foreign contiguous territory or, in the case of an immigrant coming from
foreign contiguous territory, before the time of the immigrant’s application
for admission.
(l) G
N
M
I
(1) I
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The requirement of subsection (a)(7)(B)(i) may be waived by the
Secretary of Homeland Security, in the case of an alien applying for
admission as a nonimmigrant visitor for business or pleasure and
solely for entry into and stay in Guam or the Commonwealth of the
Northern Mariana Islands for a period not to exceed 45 days, if the
Secretary of Homeland Security, after consultation with the
Secretary of the Interior, the Secretary of State, the Governor of
Guam and the Governor of the Commonwealth of the Northern
Mariana Islands, determines that—
(A) an adequate arrival and departure control system has been
developed in Guam and the Commonwealth of the Northern Mariana
Islands; and
(B) such a waiver does not represent a threat to the welfare, safety,
or security of the United States or its territories and
commonwealths.
(2) A
An alien may not be provided a waiver under this subsection unless
the alien has waived any right—
(A) to review or appeal under this chapter an immigration officer’s
determination as to the admissibility of the alien at the port of entry
into Guam or the Commonwealth of the Northern Mariana Islands;
or
(B) to contest, other than on the basis of an application for
withholding of removal under section 1231(b)(3) of this title or
under the Convention Against Torture, or an application for asylum if
permitted under section 1158 of this title, any action for removal of
the alien.
(3) R
All necessary regulations to implement this subsection shall be
promulgated by the Secretary of Homeland Security, in
consultation with the Secretary of the Interior and the Secretary of
State, on or before the 180th day after May 8, 2008. The
promulgation of such regulations shall be considered a foreign
affairs function for purposes of section 553(a) of title 5. At a
minimum, such regulations should include, but not necessarily be
limited to—
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(A) a listing of all countries whose nationals may obtain the waiver
also provided by this subsection, except that such regulations shall
provide for a listing of any country from which the Commonwealth
has received a significant economic benefit from the number of
visitors for pleasure within the one-year period preceding May 8,
2008, unless the Secretary of Homeland Security determines that
such country’s inclusion on such list would represent a threat to the
welfare, safety, or security of the United States or its territories; and
(B) any bonding requirements for nationals of some or all of those
countries who may present an increased risk of overstays or other
potential problems, if different from such requirements otherwise
provided by law for nonimmigrant visitors.
(4) F
In determining whether to grant or continue providing the waiver under
this subsection to nationals of any country, the Secretary of Homeland
Security, in consultation with the Secretary of the Interior and the
Secretary of State, shall consider all factors that the Secretary deems
relevant, including electronic travel authorizations, procedures for
reporting lost and stolen passports, repatriation of aliens, rates of
refusal for nonimmigrant visitor visas, overstays, exit systems, and
information exchange.
(5) S
The Secretary of Homeland Security shall monitor the admission of
nonimmigrant visitors to Guam and the Commonwealth of the Northern
Mariana Islands under this subsection. If the Secretary determines that
such admissions have resulted in an unacceptable number of visitors
from a country remaining unlawfully in Guam or the Commonwealth of
the Northern Mariana Islands, unlawfully obtaining entry to other parts
of the United States, or seeking withholding of removal or asylum, or
that visitors from a country pose a risk to law enforcement or security
interests of Guam or the Commonwealth of the Northern Mariana
Islands or of the United States (including the interest in the
enforcement of the immigration laws of the United States), the
Secretary shall suspend the admission of nationals of such country
under this subsection. The Secretary of Homeland Security may in the
Secretary’s discretion suspend the Guam and Northern Mariana Islands
visa waiver program at any time, on a country-by-country basis, for
other good cause.
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(6) A
The Governor of Guam and the Governor of the Commonwealth of the
Northern Mariana Islands may request the Secretary of the Interior and
the Secretary of Homeland Security to add a particular country to the
list of countries whose nationals may obtain the waiver provided by this
subsection, and the Secretary of Homeland Security may grant such
request after consultation with the Secretary of the Interior and the
Secretary of State, and may promulgate regulations with respect to the
inclusion of that country and any special requirements the Secretary of
Homeland Security, in the Secretary’s sole discretion, may impose prior
to allowing nationals of that country to obtain the waiver provided by
this subsection.
(m) R
(1) The qualifications referred to in section 1101(a)(15)(H)(i)(c) of this
title, with respect to an alien who is coming to the United States to
perform nursing services for a facility, are that the alien—
(A) has obtained a full and unrestricted license to practice
professional nursing in the country where the alien obtained nursing
education or has received nursing education in the United States;
(B) has passed an appropriate examination (recognized in
regulations promulgated in consultation with the Secretary of Health
and Human Services) or has a full and unrestricted license under
State law to practice professional nursing in the State of intended
employment; and
(C) is fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the
nurse to be employed) governing the place of intended employment
to engage in the practice of professional nursing as a registered
nurse immediately upon admission to the United States and is
authorized under such laws to be employed by the facility.
(2)
(A) The attestation referred to in section 1101(a)(15)(H)(i)(c) of
this title, with respect to a facility for which an alien will perform
services, is an attestation as to the following:
(i) The facility meets all the requirements of paragraph (6).
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(ii) The employment of the alien will not adversely affect the
wages and working conditions of registered nurses similarly
employed.
(iii) The alien employed by the facility will be paid the wage rate
for registered nurses similarly employed by the facility.
(iv) The facility has taken and is taking timely and significant
steps designed to recruit and retain sufficient registered nurses
who are United States citizens or immigrants who are authorized
to perform nursing services, in order to remove as quickly as
reasonably possible the dependence of the facility on
nonimmigrant registered nurses.
(v) There is not a strike or lockout in the course of a labor
dispute, the facility did not lay off and will not lay off a
registered nurse employed by the facility within the period
beginning 90 days before and ending 90 days after the date of
filing of any visa petition, and the employment of such an alien
is not intended or designed to influence an election for a
bargaining representative for registered nurses of the facility.
(vi) At the time of the filing of the petition for registered nurses
under section 1101(a)(15)(H)(i)(c) of this title, notice of the
filing has been provided by the facility to the bargaining
representative of the registered nurses at the facility or, where
there is no such bargaining representative, notice of the filing
has been provided to the registered nurses employed at the
facility through posting in conspicuous locations.
(vii) The facility will not, at any time, employ a number of
aliens issued visas or otherwise provided nonimmigrant status
under section 1101(a)(15)(H)(i)(c) of this title that exceeds 33
percent of the total number of registered nurses employed by
the facility.
(viii) The facility will not, with respect to any alien issued a visa
or otherwise provided nonimmigrant status under section
1101(a)(15)(H)(i)(c) of this title—
(I) authorize the alien to perform nursing services at any
worksite other than a worksite controlled by the facility; or
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(II) transfer the place of employment of the alien from one
worksite to another.
Nothing in clause (iv) shall be construed as requiring a
facility to have taken significant steps described in such
clause before November 12, 1999. A copy of the attestation
shall be provided, within 30 days of the date of filing, to
registered nurses employed at the facility on the date of
filing.
(B) For purposes of subparagraph (A)(iv), each of the following
shall be considered a significant step reasonably designed to recruit
and retain registered nurses:
(i) Operating a training program for registered nurses at the
facility or financing (or providing participation in) a training
program for registered nurses elsewhere.
(ii) Providing career development programs and other methods
of facilitating health care workers to become registered nurses.
(iii) Paying registered nurses wages at a rate higher than
currently being paid to registered nurses similarly employed in
the geographic area.
(iv) Providing reasonable opportunities for meaningful salary
advancement by registered nurses.
The steps described in this subparagraph shall not be
considered to be an exclusive list of the significant steps that
may be taken to meet the conditions of subparagraph (A)(iv).
Nothing in this subparagraph shall require a facility to take
more than one step if the facility can demonstrate that taking a
second step is not reasonable.
(C) Subject to subparagraph (E), an attestation under
subparagraph (A)—
(i) shall expire on the date that is the later of—
(I) the end of the one-year period beginning on the date of
its filing with the Secretary of Labor; or
(II) the end of the period of admission under section
1101(a)(15)(H)(i)(c) of this title of the last alien with respect
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to whose admission it was applied (in accordance with clause
(ii)); and
(ii) shall apply to petitions filed during the one-year period
beginning on the date of its filing with the Secretary of Labor if
the facility states in each such petition that it continues to
comply with the conditions in the attestation.
(D) A facility may meet the requirements under this paragraph with
respect to more than one registered nurse in a single petition.
(E)
(i) The Secretary of Labor shall compile and make available for
public examination in a timely manner in Washington, D.C., a
list identifying facilities which have filed petitions for
nonimmigrants under section 1101(a)(15)(H)(i)(c) of this title
and, for each such facility, a copy of the facility’s attestation
under subparagraph (A) (and accompanying documentation)
and each such petition filed by the facility.
(ii) The Secretary of Labor shall establish a process, including
reasonable time limits, for the receipt, investigation, and
disposition of complaints respecting a facility’s failure to meet
conditions attested to or a facility’s misrepresentation of a
material fact in an attestation. Complaints may be filed by any
aggrieved person or organization (including bargaining
representatives, associations deemed appropriate by the
Secretary, and other aggrieved parties as determined under
regulations of the Secretary). The Secretary shall conduct an
investigation under this clause if there is reasonable cause to
believe that a facility fails to meet conditions attested to.
Subject to the time limits established under this clause, this
subparagraph shall apply regardless of whether an attestation is
expired or unexpired at the time a complaint is filed.
(iii) Under such process, the Secretary shall provide, within 180
days after the date such a complaint is filed, for a determination
as to whether or not a basis exists to make a finding described
in clause (iv). If the Secretary determines that such a basis
exists, the Secretary shall provide for notice of such
determination to the interested parties and an opportunity for a
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hearing on the complaint within 60 days of the date of the
determination.
(iv) If the Secretary of Labor finds, after notice and opportunity
for a hearing, that a facility (for which an attestation is made)
has failed to meet a condition attested to or that there was a
misrepresentation of material fact in the attestation, the
Secretary shall notify the Attorney General of such finding and
may, in addition, impose such other administrative remedies
(including civil monetary penalties in an amount not to exceed
$1,000 per nurse per violation, with the total penalty not to
exceed $10,000 per violation) as the Secretary determines to
be appropriate. Upon receipt of such notice, the Attorney
General shall not approve petitions filed with respect to a facility
during a period of at least one year for nurses to be employed
by the facility.
(v) In addition to the sanctions provided for under clause (iv), if
the Secretary of Labor finds, after notice and an opportunity for
a hearing, that a facility has violated the condition attested to
under subparagraph (A)(iii) (relating to payment of registered
nurses at the prevailing wage rate), the Secretary shall order
the facility to provide for payment of such amounts of back pay
as may be required to comply with such condition.
(F)
(i) The Secretary of Labor shall impose on a facility filing an
attestation under subparagraph (A) a filing fee, in an amount
prescribed by the Secretary based on the costs of carrying out
the Secretary’s duties under this subsection, but not exceeding
$250.
(ii) Fees collected under this subparagraph shall be deposited in
a fund established for this purpose in the Treasury of the United
States.
(iii) The collected fees in the fund shall be available to the
Secretary of Labor, to the extent and in such amounts as may
be provided in appropriations Acts, to cover the costs described
in clause (i), in addition to any other funds that are available to
the Secretary to cover such costs.
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(3) The period of admission of an alien under section 1101(a)(15)(H)
(i)(c) of this title shall be 3 years.
(4) The total number of nonimmigrant visas issued pursuant to
petitions granted under section 1101(a)(15)(H)(i)(c) of this title in
each fiscal year shall not exceed 500. The number of such visas issued
for employment in each State in each fiscal year shall not exceed the
following:
(A) For States with populations of less than 9,000,000, based upon
the 1990 decennial census of population, 25 visas.
(B) For States with populations of 9,000,000 or more, based upon
the 1990 decennial census of population, 50 visas.
(C) If the total number of visas available under this paragraph for a
fiscal year quarter exceeds the number of qualified nonimmigrants
who may be issued such visas during those quarters, the visas
made available under this paragraph shall be issued without regard
to the numerical limitation under subparagraph (A) or (B) of this
paragraph during the last fiscal year quarter.
(5) A facility that has filed a petition under section 1101(a)(15)(H)(i)
(c) of this title to employ a nonimmigrant to perform nursing services
for the facility—
(A) shall provide the nonimmigrant a wage rate and working
conditions commensurate with those of nurses similarly employed
by the facility;
(B) shall require the nonimmigrant to work hours commensurate
with those of nurses similarly employed by the facility; and
(C) shall not interfere with the right of the nonimmigrant to join or
organize a union.
(6) For purposes of this subsection and section 1101(a)(15)(H)(i)(c) of
this title, the term “facility” means a subsection (d) hospital (as defined
in section 1886(d)(1)(B) of the Social Security Act (42 U.S.C.
1395ww(d)(1)(B))) that meets the following requirements:
(A) As of March 31, 1997, the hospital was located in a health
professional shortage area (as defined in section 254e of title 42).
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(B) Based on its settled cost report filed under title XVIII of the
Social Security Act [42 U.S.C. 1395 et seq.] for its cost reporting
period beginning during fiscal year 1994—
(i) the hospital has not less than 190 licensed acute care beds;
(ii) the number of the hospital’s inpatient days for such period
which were made up of patients who (for such days) were
entitled to benefits under part A of such title [42 U.S.C. 1395c et
seq.] is not less than 35 percent of the total number of such
hospital’s acute care inpatient days for such period; and
(iii) the number of the hospital’s inpatient days for such period
which were made up of patients who (for such days) were
eligible for medical assistance under a State plan approved
under title XIX of the Social Security Act [42 U.S.C. 1396 et
seq.], is not less than 28 percent of the total number of such
hospital’s acute care inpatient days for such period.
(7) For purposes of paragraph (2)(A)(v), the term “lay off”, with
respect to a worker—
(A) means to cause the worker’s loss of employment, other than
through a discharge for inadequate performance, violation of
workplace rules, cause, voluntary departure, voluntary retirement,
or the expiration of a grant or contract; but
(B) does not include any situation in which the worker is offered, as
an alternative to such loss of employment, a similar employment
opportunity with the same employer at equivalent or higher
compensation and benefits than the position from which the
employee was discharged, regardless of whether or not the
employee accepts the offer.
Nothing in this paragraph is intended to limit an employee’s or an
employer’s rights under a collective bargaining agreement or other
employment contract.
(n) L
(1) No alien may be admitted or provided status as an H–1B
nonimmigrant in an occupational classification unless the employer has
filed with the Secretary of Labor an application stating the following:
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(A) The employer—
(i) is offering and will offer during the period of authorized
employment to aliens admitted or provided status as an H–1B
nonimmigrant wages that are at least—
(I) the actual wage level paid by the employer to all other
individuals with similar experience and qualifications for the
specific employment in question, or
(II) the prevailing wage level for the occupational
classification in the area of employment,
whichever is greater, based on the best information available
as of the time of filing the application, and
(ii) will provide working conditions for such a nonimmigrant that
will not adversely affect the working conditions of workers
similarly employed.
(B) There is not a strike or lockout in the course of a labor dispute
in the occupational classification at the place of employment.
(C) The employer, at the time of filing the application—
(i) has provided notice of the filing under this paragraph to the
bargaining representative (if any) of the employer’s employees
in the occupational classification and area for which aliens are
sought, or
(ii) if there is no such bargaining representative, has provided
notice of filing in the occupational classification through such
methods as physical posting in conspicuous locations at the
place of employment or electronic notification to employees in
the occupational classification for which H–1B nonimmigrants are
sought.
(D) The application shall contain a specification of the number of
workers sought, the occupational classification in which the workers
will be employed, and wage rate and conditions under which they
will be employed.
(E)
(i) In the case of an application described in clause (ii), the
employer did not displace and will not displace a United States
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worker (as defined in paragraph (4)) employed by the employer
within the period beginning 90 days before and ending 90 days
after the date of filing of any visa petition supported by the
application.
(ii) An application described in this clause is an application filed
on or after the date final regulations are first promulgated to
carry out this subparagraph, and before [8] by an H–1Bdependent employer (as defined in paragraph (3)) or by an
employer that has been found, on or after October 21, 1998,
under paragraph (2)(C) or (5) to have committed a willful failure
or misrepresentation during the 5-year period preceding the
filing of the application. An application is not described in this
clause if the only H–1B nonimmigrants sought in the application
are exempt H–1B nonimmigrants.
(F) In the case of an application described in subparagraph (E)(ii),
the employer will not place the nonimmigrant with another
employer (regardless of whether or not such other employer is an
H–1B-dependent employer) where—
(i) the nonimmigrant performs duties in whole or in part at one
or more worksites owned, operated, or controlled by such other
employer; and
(ii) there are indicia of an employment relationship between the
nonimmigrant and such other employer;
unless the employer has inquired of the other employer as to
whether, and has no knowledge that, within the period
beginning 90 days before and ending 90 days after the date of
the placement of the nonimmigrant with the other employer, the
other employer has displaced or intends to displace a United
States worker employed by the other employer.
(G)
(i) In the case of an application described in subparagraph (E)
(ii), subject to clause (ii), the employer, prior to filing the
application—
(I) has taken good faith steps to recruit, in the United States
using procedures that meet industry-wide standards and
offering compensation that is at least as great as that
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required to be offered to H–1B nonimmigrants under
subparagraph (A), United States workers for the job for
which the nonimmigrant or nonimmigrants is or are sought;
and
(II) has offered the job to any United States worker who
applies and is equally or better qualified for the job for which
the nonimmigrant or nonimmigrants is or are sought.
(ii) The conditions described in clause (i) shall not apply to an
application filed with respect to the employment of an H–1B
nonimmigrant who is described in subparagraph (A), (B), or (C)
of section 1153(b)(1) of this title.
The employer shall make available for public examination, within
one working day after the date on which an application under this
paragraph is filed, at the employer’s principal place of business or
worksite, a copy of each such application (and such accompanying
documents as are necessary). The Secretary shall compile, on a
current basis, a list (by employer and by occupational
classification) of the applications filed under this subsection. Such
list shall include the wage rate, number of aliens sought, period of
intended employment, and date of need. The Secretary shall make
such list available for public examination in Washington, D.C. The
Secretary of Labor shall review such an application only for
completeness and obvious inaccuracies. Unless the Secretary finds
that the application is incomplete or obviously inaccurate, the
Secretary shall provide the certification described in section
1101(a)(15)(H)(i)(b) of this title within 7 days of the date of the
filing of the application. The application form shall include a clear
statement explaining the liability under subparagraph (F) of a
placing employer if the other employer described in such
subparagraph displaces a United States worker as described in
such subparagraph. Nothing in subparagraph (G) shall be
construed to prohibit an employer from using legitimate selection
criteria relevant to the job that are normal or customary to the
type of job involved, so long as such criteria are not applied in a
discriminatory manner.
(2)
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(A) Subject to paragraph (5)(A), the Secretary shall establish a
process for the receipt, investigation, and disposition of complaints
respecting a petitioner’s failure to meet a condition specified in an
application submitted under paragraph (1) or a petitioner’s
misrepresentation of material facts in such an application.
Complaints may be filed by any aggrieved person or organization
(including bargaining representatives). No investigation or hearing
shall be conducted on a complaint concerning such a failure or
misrepresentation unless the complaint was filed not later than 12
months after the date of the failure or misrepresentation,
respectively. The Secretary shall conduct an investigation under this
paragraph if there is reasonable cause to believe that such a failure
or misrepresentation has occurred.
(B) Under such process, the Secretary shall provide, within 30 days
after the date such a complaint is filed, for a determination as to
whether or not a reasonable basis exists to make a finding
described in subparagraph (C). If the Secretary determines that
such a reasonable basis exists, the Secretary shall provide for
notice of such determination to the interested parties and an
opportunity for a hearing on the complaint, in accordance with
section 556 of title 5, within 60 days after the date of the
determination. If such a hearing is requested, the Secretary shall
make a finding concerning the matter by not later than 60 days
after the date of the hearing. In the case of similar complaints
respecting the same applicant, the Secretary may consolidate the
hearings under this subparagraph on such complaints.
(C)
(i) If the Secretary finds, after notice and opportunity for a
hearing, a failure to meet a condition of paragraph (1)(B), (1)
(E), or (1)(F), a substantial failure to meet a condition of
paragraph (1)(C), (1)(D), or (1)(G)(i)(I), or a misrepresentation
of material fact in an application—
(I) the Secretary shall notify the Attorney General of such
finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties
in an amount not to exceed $1,000 per violation) as the
Secretary determines to be appropriate; and
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(II) the Attorney General shall not approve petitions filed
with respect to that employer under section 1154 or 1184(c)
of this title during a period of at least 1 year for aliens to be
employed by the employer.
(ii) If the Secretary finds, after notice and opportunity for a
hearing, a willful failure to meet a condition of paragraph (1), a
willful misrepresentation of material fact in an application, or a
violation of clause (iv)—
(I) the Secretary shall notify the Attorney General of such
finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties
in an amount not to exceed $5,000 per violation) as the
Secretary determines to be appropriate; and
(II) the Attorney General shall not approve petitions filed
with respect to that employer under section 1154 or 1184(c)
of this title during a period of at least 2 years for aliens to be
employed by the employer.
(iii) If the Secretary finds, after notice and opportunity for a
hearing, a willful failure to meet a condition of paragraph (1) or
a willful misrepresentation of material fact in an application, in
the course of which failure or misrepresentation the employer
displaced a United States worker employed by the employer
within the period beginning 90 days before and ending 90 days
after the date of filing of any visa petition supported by the
application—
(I) the Secretary shall notify the Attorney General of such
finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties
in an amount not to exceed $35,000 per violation) as the
Secretary determines to be appropriate; and
(II) the Attorney General shall not approve petitions filed
with respect to that employer under section 1154 or 1184(c)
of this title during a period of at least 3 years for aliens to be
employed by the employer.
(iv) It is a violation of this clause for an employer who has filed
an application under this subsection to intimidate, threaten,
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restrain, coerce, blacklist, discharge, or in any other manner
discriminate against an employee (which term, for purposes of
this clause, includes a former employee and an applicant for
employment) because the employee has disclosed information
to the employer, or to any other person, that the employee
reasonably believes evidences a violation of this subsection, or
any rule or regulation pertaining to this subsection, or because
the employee cooperates or seeks to cooperate in an
investigation or other proceeding concerning the employer’s
compliance with the requirements of this subsection or any rule
or regulation pertaining to this subsection.
(v) The Secretary of Labor and the Attorney General shall
devise a process under which an H–1B nonimmigrant who files a
complaint regarding a violation of clause (iv) and is otherwise
eligible to remain and work in the United States may be allowed
to seek other appropriate employment in the United States for a
period not to exceed the maximum period of stay authorized for
such nonimmigrant classification.
(vi)
(I) It is a violation of this clause for an employer who has
filed an application under this subsection to require an H–1B
nonimmigrant to pay a penalty for ceasing employment with
the employer prior to a date agreed to by the nonimmigrant
and the employer. The Secretary shall determine whether a
required payment is a penalty (and not liquidated damages)
pursuant to relevant State law.
(II) It is a violation of this clause for an employer who has
filed an application under this subsection to require an alien
who is the subject of a petition filed under section 1184(c)
(1) of this title, for which a fee is imposed under section
1184(c)(9) of this title, to reimburse, or otherwise
compensate, the employer for part or all of the cost of such
fee. It is a violation of this clause for such an employer
otherwise to accept such reimbursement or compensation
from such an alien.
(III) If the Secretary finds, after notice and opportunity for
a hearing, that an employer has committed a violation of
this clause, the Secretary may impose a civil monetary
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penalty of $1,000 for each such violation and issue an
administrative order requiring the return to the
nonimmigrant of any amount paid in violation of this clause,
or, if the nonimmigrant cannot be located, requiring
payment of any such amount to the general fund of the
Treasury.
(vii)
(I) It is a failure to meet a condition of paragraph (1)(A) for
an employer, who has filed an application under this
subsection and who places an H–1B nonimmigrant
designated as a full-time employee on the petition filed
under section 1184(c)(1) of this title by the employer with
respect to the nonimmigrant, after the nonimmigrant has
entered into employment with the employer, in
nonproductive status due to a decision by the employer
(based on factors such as lack of work), or due to the
nonimmigrant’s lack of a permit or license, to fail to pay the
nonimmigrant full-time wages in accordance with paragraph
(1)(A) for all such nonproductive time.
(II) It is a failure to meet a condition of paragraph (1)(A)
for an employer, who has filed an application under this
subsection and who places an H–1B nonimmigrant
designated as a part-time employee on the petition filed
under section 1184(c)(1) of this title by the employer with
respect to the nonimmigrant, after the nonimmigrant has
entered into employment with the employer, in
nonproductive status under circumstances described in
subclause (I), to fail to pay such a nonimmigrant for such
hours as are designated on such petition consistent with the
rate of pay identified on such petition.
(III) In the case of an H–1B nonimmigrant who has not yet
entered into employment with an employer who has had
approved an application under this subsection, and a
petition under section 1184(c)(1) of this title, with respect
to the nonimmigrant, the provisions of subclauses (I) and
(II) shall apply to the employer beginning 30 days after the
date the nonimmigrant first is admitted into the United
States pursuant to the petition, or 60 days after the date
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the nonimmigrant becomes eligible to work for the employer
(in the case of a nonimmigrant who is present in the United
States on the date of the approval of the petition).
(IV) This clause does not apply to a failure to pay wages to
an H–1B nonimmigrant for nonproductive time due to nonwork-related factors, such as the voluntary request of the
nonimmigrant for an absence or circumstances rendering
the nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an
employer that is a school or other educational institution
from applying to an H–1B nonimmigrant an established
salary practice of the employer, under which the employer
pays to H–1B nonimmigrants and United States workers in
the same occupational classification an annual salary in
disbursements over fewer than 12 months, if—
(aa) the nonimmigrant agrees to the compressed annual
salary payments prior to the commencement of the
employment; and
(bb) the application of the salary practice to the
nonimmigrant does not otherwise cause the
nonimmigrant to violate any condition of the
nonimmigrant’s authorization under this chapter to
remain in the United States.
(VI) This clause shall not be construed as superseding
clause (viii).
(viii) It is a failure to meet a condition of paragraph (1)(A) for
an employer who has filed an application under this subsection
to fail to offer to an H–1B nonimmigrant, during the
nonimmigrant’s period of authorized employment, benefits and
eligibility for benefits (including the opportunity to participate in
health, life, disability, and other insurance plans; the
opportunity to participate in retirement and savings plans; and
cash bonuses and noncash compensation, such as stock options
(whether or not based on performance)) on the same basis, and
in accordance with the same criteria, as the employer offers to
United States workers.
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(D) If the Secretary finds, after notice and opportunity for a
hearing, that an employer has not paid wages at the wage level
specified under the application and required under paragraph (1),
the Secretary shall order the employer to provide for payment of
such amounts of back pay as may be required to comply with the
requirements of paragraph (1), whether or not a penalty under
subparagraph (C) has been imposed.
(E) If an H–1B-dependent employer places a nonexempt H–1B
nonimmigrant with another employer as provided under paragraph
(1)(F) and the other employer has displaced or displaces a United
States worker employed by such other employer during the period
described in such paragraph, such displacement shall be considered
for purposes of this paragraph a failure, by the placing employer, to
meet a condition specified in an application submitted under
paragraph (1); except that the Attorney General may impose a
sanction described in subclause (II) of subparagraph (C)(i), (C)(ii),
or (C)(iii) only if the Secretary of Labor found that such placing
employer—
(i) knew or had reason to know of such displacement at the
time of the placement of the nonimmigrant with the other
employer; or
(ii) has been subject to a sanction under this subparagraph
based upon a previous placement of an H–1B nonimmigrant with
the same other employer.
(F) The Secretary may, on a case-by-case basis, subject an
employer to random investigations for a period of up to 5 years,
beginning on the date (on or after October 21, 1998) on which the
employer is found by the Secretary to have committed a willful
failure to meet a condition of paragraph (1) (or has been found
under paragraph (5) to have committed a willful failure to meet the
condition of paragraph (1)(G)(i)(II)) or to have made a willful
misrepresentation of material fact in an application. The preceding
sentence shall apply to an employer regardless of whether or not
the employer is an H–1B-dependent employer. The authority of the
Secretary under this subparagraph shall not be construed to be
subject to, or limited by, the requirements of subparagraph (A).
(G)
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(i) The Secretary of Labor may initiate an investigation of any
employer that employs nonimmigrants described in section
1101(a)(15)(H)(i)(b) of this title if the Secretary of Labor has
reasonable cause to believe that the employer is not in
compliance with this subsection. In the case of an investigation
under this clause, the Secretary of Labor (or the acting
Secretary in the case of the absence of [9] disability of the
Secretary of Labor) shall personally certify that reasonable
cause exists and shall approve commencement of the
investigation. The investigation may be initiated for reasons
other than completeness and obvious inaccuracies by the
employer in complying with this subsection.
(ii) If the Secretary of Labor receives specific credible
information from a source who is likely to have knowledge of an
employer’s practices or employment conditions, or an
employer’s compliance with the employer’s labor condition
application under paragraph (1), and whose identity is known to
the Secretary of Labor, and such information provides
reasonable cause to believe that the employer has committed a
willful failure to meet a condition of paragraph (1)(A), (1)(B),
(1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern
or practice of failures to meet such a condition, or has
committed a substantial failure to meet such a condition that
affects multiple employees, the Secretary of Labor may conduct
an investigation into the alleged failure or failures. The
Secretary of Labor may withhold the identity of the source from
the employer, and the source’s identity shall not be subject to
disclosure under section 552 of title 5.
(iii) The Secretary of Labor shall establish a procedure for any
person desiring to provide to the Secretary of Labor information
described in clause (ii) that may be used, in whole or in part, as
the basis for the commencement of an investigation described
in such clause, to provide the information in writing on a form
developed and provided by the Secretary of Labor and
completed by or on behalf of the person. The person may not
be an officer or employee of the Department of Labor, unless
the information satisfies the requirement of clause (iv)(II)
(although an officer or employee of the Department of Labor
may complete the form on behalf of the person).
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(iv) Any investigation initiated or approved by the Secretary of
Labor under clause (ii) shall be based on information that
satisfies the requirements of such clause and that—
(I) originates from a source other than an officer or
employee of the Department of Labor; or
(II) was lawfully obtained by the Secretary of Labor in the
course of lawfully conducting another Department of Labor
investigation under this chapter of 9 any other Act.
(v) The receipt by the Secretary of Labor of information
submitted by an employer to the Attorney General or the
Secretary of Labor for purposes of securing the employment of
a nonimmigrant described in section 1101(a)(15)(H)(i)(b) of
this title shall not be considered a receipt of information for
purposes of clause (ii).
(vi) No investigation described in clause (ii) (or hearing
described in clause (viii) based on such investigation) may be
conducted with respect to information about a failure to meet a
condition described in clause (ii), unless the Secretary of Labor
receives the information not later than 12 months after the date
of the alleged failure.
(vii) The Secretary of Labor shall provide notice to an employer
with respect to whom there is reasonable cause to initiate an
investigation described in clauses [10] (i) or (ii), prior to the
commencement of an investigation under such clauses, of the
intent to conduct an investigation. The notice shall be provided
in such a manner, and shall contain sufficient detail, to permit
the employer to respond to the allegations before an
investigation is commenced. The Secretary of Labor is not
required to comply with this clause if the Secretary of Labor
determines that to do so would interfere with an effort by the
Secretary of Labor to secure compliance by the employer with
the requirements of this subsection. There shall be no judicial
review of a determination by the Secretary of Labor under this
clause.
(viii) An investigation under clauses 10 (i) or (ii) may be
conducted for a period of up to 60 days. If the Secretary of
Labor determines after such an investigation that a reasonable
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basis exists to make a finding that the employer has committed
a willful failure to meet a condition of paragraph (1)(A), (1)(B),
(1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern
or practice of failures to meet such a condition, or has
committed a substantial failure to meet such a condition that
affects multiple employees, the Secretary of Labor shall provide
for notice of such determination to the interested parties and an
opportunity for a hearing in accordance with section 556 of title
5 within 120 days after the date of the determination. If such a
hearing is requested, the Secretary of Labor shall make a
finding concerning the matter by not later than 120 days after
the date of the hearing.
(H)
(i) Except as provided in clauses (ii) and (iii), a person or entity
is considered to have complied with the requirements of this
subsection, notwithstanding a technical or procedural failure to
meet such requirements, if there was a good faith attempt to
comply with the requirements.
(ii) Clause (i) shall not apply if—
(I) the Department of Labor (or another enforcement
agency) has explained to the person or entity the basis for
the failure;
(II) the person or entity has been provided a period of not
less than 10 business days (beginning after the date of the
explanation) within which to correct the failure; and
(III) the person or entity has not corrected the failure
voluntarily within such period.
(iii) A person or entity that, in the course of an investigation, is
found to have violated the prevailing wage requirements set
forth in paragraph (1)(A), shall not be assessed fines or other
penalties for such violation if the person or entity can establish
that the manner in which the prevailing wage was calculated
was consistent with recognized industry standards and
practices.
(iv) Clauses (i) and (iii) shall not apply to a person or entity
that has engaged in or is engaging in a pattern or practice of
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willful violations of this subsection.
(I) Nothing in this subsection shall be construed as superseding or
preempting any other enforcement-related authority under this
chapter (such as the authorities under section 1324b of this title),
or any other Act.
(3)
(A) For purposes of this subsection, the term “H–1B-dependent
employer” means an employer that—
(i)
(I) has 25 or fewer full-time equivalent employees who are
employed in the United States; and (II) employs more than
7 H–1B nonimmigrants;
(ii)
(I) has at least 26 but not more than 50 full-time equivalent
employees who are employed in the United States; and (II)
employs more than 12 H–1B nonimmigrants; or
(iii)
(I) has at least 51 full-time equivalent employees who are
employed in the United States; and (II) employs H–1B
nonimmigrants in a number that is equal to at least 15
percent of the number of such full-time equivalent
employees.
(B) For purposes of this subsection—
(i) the term “exempt H–1B nonimmigrant” means an H–1B
nonimmigrant who—
(I) receives wages (including cash bonuses and similar
compensation) at an annual rate equal to at least $60,000;
or
(II) has attained a master’s or higher degree (or its
equivalent) in a specialty related to the intended
employment; and
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(ii) the term “nonexempt H–1B nonimmigrant” means an H–1B
nonimmigrant who is not an exempt H–1B nonimmigrant.
(C) For purposes of subparagraph (A)—
(i) in computing the number of full-time equivalent employees
and the number of H–1B nonimmigrants, exempt H–1B
nonimmigrants shall not be taken into account during the longer
of—
(I) the 6-month period beginning on October 21, 1998; or
(II) the period beginning on October 21, 1998, and ending
on the date final regulations are issued to carry out this
paragraph; and
(ii) any group treated as a single employer under subsection
(b), (c), (m), or (o) of section 414 of title 26 shall be treated as
a single employer.
(4) For purposes of this subsection:
(A) The term “area of employment” means the area within normal
commuting distance of the worksite or physical location where the
work of the H–1B nonimmigrant is or will be performed. If such
worksite or location is within a Metropolitan Statistical Area, any
place within such area is deemed to be within the area of
employment.
(B) In the case of an application with respect to one or more H–1B
nonimmigrants by an employer, the employer is considered to
“displace” a United States worker from a job if the employer lays off
the worker from a job that is essentially the equivalent of the job
for which the nonimmigrant or nonimmigrants is or are sought. A
job shall not be considered to be essentially equivalent of another
job unless it involves essentially the same responsibilities, was held
by a United States worker with substantially equivalent
qualifications and experience, and is located in the same area of
employment as the other job.
(C) The term “H–1B nonimmigrant” means an alien admitted or
provided status as a nonimmigrant described in section 1101(a)(15)
(H)(i)(b) of this title.
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(D)
(i) The term “lays off”, with respect to a worker—
(I) means to cause the worker’s loss of employment, other
than through a discharge for inadequate performance,
violation of workplace rules, cause, voluntary departure,
voluntary retirement, or the expiration of a grant or contract
(other than a temporary employment contract entered into in
order to evade a condition described in subparagraph (E) or
(F) of paragraph (1)); but
(II) does not include any situation in which the worker is
offered, as an alternative to such loss of employment, a
similar employment opportunity with the same employer (or,
in the case of a placement of a worker with another employer
under paragraph (1)(F), with either employer described in
such paragraph) at equivalent or higher compensation and
benefits than the position from which the employee was
discharged, regardless of whether or not the employee
accepts the offer.
(ii) Nothing in this subparagraph is intended to limit an
employee’s rights under a collective bargaining agreement or
other employment contract.
(E) The term “United States worker” means an employee who—
(i) is a citizen or national of the United States; or
(ii) is an alien who is lawfully admitted for permanent residence,
is admitted as a refugee under section 1157 of this title, is
granted asylum under section 1158 of this title, or is an
immigrant otherwise authorized, by this chapter or by the
Attorney General, to be employed.
(5)
(A) This paragraph shall apply instead of subparagraphs (A)
through (E) of paragraph (2) in the case of a violation described in
subparagraph (B), but shall not be construed to limit or affect the
authority of the Secretary or the Attorney General with respect to
any other violation.
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(B) The Attorney General shall establish a process for the receipt,
initial review, and disposition in accordance with this paragraph of
complaints respecting an employer’s failure to meet the condition of
paragraph (1)(G)(i)(II) or a petitioner’s misrepresentation of
material facts with respect to such condition. Complaints may be
filed by an aggrieved individual who has submitted a resume or
otherwise applied in a reasonable manner for the job that is the
subject of the condition. No proceeding shall be conducted under
this paragraph on a complaint concerning such a failure or
misrepresentation unless the Attorney General determines that the
complaint was filed not later than 12 months after the date of the
failure or misrepresentation, respectively.
(C) If the Attorney General finds that a complaint has been filed in
accordance with subparagraph (B) and there is reasonable cause to
believe that such a failure or misrepresentation described in such
complaint has occurred, the Attorney General shall initiate binding
arbitration proceedings by requesting the Federal Mediation and
Conciliation Service to appoint an arbitrator from the roster of
arbitrators maintained by such Service. The procedure and rules of
such Service shall be applicable to the selection of such arbitrator
and to such arbitration proceedings. The Attorney General shall pay
the fee and expenses of the arbitrator.
(D)
(i) The arbitrator shall make findings respecting whether a
failure or misrepresentation described in subparagraph (B)
occurred. If the arbitrator concludes that failure or
misrepresentation was willful, the arbitrator shall make a finding
to that effect. The arbitrator may not find such a failure or
misrepresentation (or that such a failure or misrepresentation
was willful) unless the complainant demonstrates such a failure
or misrepresentation (or its willful character) by clear and
convincing evidence. The arbitrator shall transmit the findings in
the form of a written opinion to the parties to the arbitration
and the Attorney General. Such findings shall be final and
conclusive, and, except as provided in this subparagraph, no
official or court of the United States shall have power or
jurisdiction to review any such findings.
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(ii) The Attorney General may review and reverse or modify the
findings of an arbitrator only on the same bases as an award of
an arbitrator may be vacated or modified under section 10 or 11
of title 9.
(iii) With respect to the findings of an arbitrator, a court may
review only the actions of the Attorney General under clause (ii)
and may set aside such actions only on the grounds described
in subparagraph (A), (B), or (C) of section 706(a)(2) of title 5.
Notwithstanding any other provision of law, such judicial review
may only be brought in an appropriate United States court of
appeals.
(E) If the Attorney General receives a finding of an arbitrator under
this paragraph that an employer has failed to meet the condition of
paragraph (1)(G)(i)(II) or has misrepresented a material fact with
respect to such condition, unless the Attorney General reverses or
modifies the finding under subparagraph (D)(ii)—
(i) the Attorney General may impose administrative remedies
(including civil monetary penalties in an amount not to exceed
$1,000 per violation or $5,000 per violation in the case of a
willful failure or misrepresentation) as the Attorney General
determines to be appropriate; and
(ii) the Attorney General is authorized to not approve petitions
filed, with respect to that employer and for aliens to be
employed by the employer, under section 1154 or 1184(c) of
this title—
(I) during a period of not more than 1 year; or
(II) in the case of a willful failure or willful
misrepresentation, during a period of not more than 2 years.
(F) The Attorney General shall not delegate, to any other employee
or official of the Department of Justice, any function of the Attorney
General under this paragraph, until 60 days after the Attorney
General has submitted a plan for such delegation to the
Committees on the Judiciary of the United States House of
Representatives and the Senate.
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(o) O
(p) C
(1) In computing the prevailing wage level for an occupational
classification in an area of employment for purposes of subsections (a)
(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) in the case of an employee
of—
(A) an institution of higher education (as defined in section 1001(a)
of title 20), or a related or affiliated nonprofit entity; or
(B) a nonprofit research organization or a Governmental research
organization,
the prevailing wage level shall only take into account employees at
such institutions and organizations in the area of employment.
(2) With respect to a professional athlete (as defined in subsection (a)
(5)(A)(iii)(II)) when the job opportunity is covered by professional
sports league rules or regulations, the wage set forth in those rules or
regulations shall be considered as not adversely affecting the wages of
United States workers similarly employed and be considered the
prevailing wage.
(3) The prevailing wage required to be paid pursuant to subsections
(a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) shall be 100 percent of
the wage determined pursuant to those sections.
(4) Where the Secretary of Labor uses, or makes available to
employers, a governmental survey to determine the prevailing wage,
such survey shall provide at least 4 levels of wages commensurate with
experience, education, and the level of supervision. Where an existing
government survey has only 2 levels, 2 intermediate levels may be
created by dividing by 3, the difference between the 2 levels offered,
adding the quotient thus obtained to the first level and subtracting that
quotient from the second level.
(q) A
Any alien admitted under section 1101(a)(15)(B) of this title may accept
an honorarium payment and associated incidental expenses for a usual
academic activity or activities (lasting not longer than 9 days at any single
institution), as defined by the Attorney General in consultation with the
Secretary of Education, if such payment is offered by an institution or
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organization described in subsection (p)(1) and is made for services
conducted for the benefit of that institution or entity and if the alien has
not accepted such payment or expenses from more than 5 institutions or
organizations in the previous 6-month period.
(r) E
Subsection (a)(5)(C) shall not apply to an alien who seeks to enter
the United States for the purpose of performing labor as a nurse who
presents to the consular officer (or in the case of an adjustment of
status, the Attorney General) a certified statement from the
Commission on Graduates of Foreign Nursing Schools (or an
equivalent independent credentialing organization approved for the
certification of nurses under subsection (a)(5)(C) by the Attorney
General in consultation with the Secretary of Health and Human
Services) that—
(1) the alien has a valid and unrestricted license as a nurse in a State
where the alien intends to be employed and such State verifies that the
foreign licenses of alien nurses are authentic and unencumbered;
(2) the alien has passed the National Council Licensure Examination
(NCLEX);
(3) the alien is a graduate of a nursing program—
(A) in which the language of instruction was English;
(B) located in a country—
(i) designated by such commission not later than 30 days after
November 12, 1999, based on such commission’s assessment
that the quality of nursing education in that country, and the
English language proficiency of those who complete such
programs in that country, justify the country’s designation; or
(ii) designated on the basis of such an assessment by
unanimous agreement of such commission and any equivalent
credentialing organizations which have been approved under
subsection (a)(5)(C) for the certification of nurses under this
subsection; and
(C)
(i) which was in operation on or before November 12, 1999; or
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(ii) has been approved by unanimous agreement of such
commission and any equivalent credentialing organizations which
have been approved under subsection (a)(5)(C) for the
certification of nurses under this subsection.
(s) C
In determining whether an alien described in subsection (a)(4)(C)(i) is
inadmissible under subsection (a)(4) or ineligible to receive an immigrant
visa or otherwise to adjust to the status of permanent resident by reason
of subsection (a)(4), the consular officer or the Attorney General shall not
consider any benefits the alien may have received that were authorized
under section 1641(c) of this title.
(t) [11] N
;
(1) No alien may be admitted or provided status as a nonimmigrant
under section 1101(a)(15)(H)(i)(b1) of this title or section 1101(a)(15)
(E)(iii) of this title in an occupational classification unless the employer
has filed with the Secretary of Labor an attestation stating the
following:
(A) The employer—
(i) is offering and will offer during the period of authorized
employment to aliens admitted or provided status under section
1101(a)(15)(H)(i)(b1) of this title or section 1101(a)(15)(E)(iii)
of this title wages that are at least—
(I) the actual wage level paid by the employer to all other
individuals with similar experience and qualifications for the
specific employment in question; or
(II) the prevailing wage level for the occupational
classification in the area of employment,
whichever is greater, based on the best information available
as of the time of filing the attestation; and
(ii) will provide working conditions for such a nonimmigrant that
will not adversely affect the working conditions of workers
similarly employed.
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(B) There is not a strike or lockout in the course of a labor dispute
in the occupational classification at the place of employment.
(C) The employer, at the time of filing the attestation—
(i) has provided notice of the filing under this paragraph to the
bargaining representative (if any) of the employer’s employees
in the occupational classification and area for which aliens are
sought; or
(ii) if there is no such bargaining representative, has provided
notice of filing in the occupational classification through such
methods as physical posting in conspicuous locations at the
place of employment or electronic notification to employees in
the occupational classification for which nonimmigrants under
section 1101(a)(15)(H)(i)(b1) of this title or section 1101(a)(15)
(E)(iii) of this title are sought.
(D) A specification of the number of workers sought, the
occupational classification in which the workers will be employed,
and wage rate and conditions under which they will be employed.
(2)
(A) The employer shall make available for public examination,
within one working day after the date on which an attestation under
this subsection is filed, at the employer’s principal place of business
or worksite, a copy of each such attestation (and such
accompanying documents as are necessary).
(B)
(i) The Secretary of Labor shall compile, on a current basis, a
list (by employer and by occupational classification) of the
attestations filed under this subsection. Such list shall include,
with respect to each attestation, the wage rate, number of
aliens sought, period of intended employment, and date of
need.
(ii) The Secretary of Labor shall make such list available for
public examination in Washington, D.C.
(C) The Secretary of Labor shall review an attestation filed under
this subsection only for completeness and obvious inaccuracies.
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Unless the Secretary of Labor finds that an attestation is incomplete
or obviously inaccurate, the Secretary of Labor shall provide the
certification described in section 1101(a)(15)(H)(i)(b1) of this title
or section 1101(a)(15)(E)(iii) of this title within 7 days of the date
of the filing of the attestation.
(3)
(A) The Secretary of Labor shall establish a process for the receipt,
investigation, and disposition of complaints respecting the failure of
an employer to meet a condition specified in an attestation
submitted under this subsection or misrepresentation by the
employer of material facts in such an attestation. Complaints may
be filed by any aggrieved person or organization (including
bargaining representatives). No investigation or hearing shall be
conducted on a complaint concerning such a failure or
misrepresentation unless the complaint was filed not later than 12
months after the date of the failure or misrepresentation,
respectively. The Secretary of Labor shall conduct an investigation
under this paragraph if there is reasonable cause to believe that
such a failure or misrepresentation has occurred.
(B) Under the process described in subparagraph (A), the
Secretary of Labor shall provide, within 30 days after the date a
complaint is filed, for a determination as to whether or not a
reasonable basis exists to make a finding described in
subparagraph (C). If the Secretary of Labor determines that such a
reasonable basis exists, the Secretary of Labor shall provide for
notice of such determination to the interested parties and an
opportunity for a hearing on the complaint, in accordance with
section 556 of title 5, within 60 days after the date of the
determination. If such a hearing is requested, the Secretary of
Labor shall make a finding concerning the matter by not later than
60 days after the date of the hearing. In the case of similar
complaints respecting the same applicant, the Secretary of Labor
may consolidate the hearings under this subparagraph on such
complaints.
(C)
(i) If the Secretary of Labor finds, after notice and opportunity
for a hearing, a failure to meet a condition of paragraph (1)(B),
a substantial failure to meet a condition of paragraph (1)(C) or
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(1)(D), or a misrepresentation of material fact in an attestation
—
(I) the Secretary of Labor shall notify the Secretary of State
and the Secretary of Homeland Security of such finding and
may, in addition, impose such other administrative remedies
(including civil monetary penalties in an amount not to
exceed $1,000 per violation) as the Secretary of Labor
determines to be appropriate; and
(II) the Secretary of State or the Secretary of Homeland
Security, as appropriate, shall not approve petitions or
applications filed with respect to that employer under section
1154, 1184(c), 1101(a)(15)(H)(i)(b1), or 1101(a)(15)(E)(iii)
of this title during a period of at least 1 year for aliens to be
employed by the employer.
(ii) If the Secretary of Labor finds, after notice and opportunity
for a hearing, a willful failure to meet a condition of paragraph
(1), a willful misrepresentation of material fact in an attestation,
or a violation of clause (iv)—
(I) the Secretary of Labor shall notify the Secretary of State
and the Secretary of Homeland Security of such finding and
may, in addition, impose such other administrative remedies
(including civil monetary penalties in an amount not to
exceed $5,000 per violation) as the Secretary of Labor
determines to be appropriate; and
(II) the Secretary of State or the Secretary of Homeland
Security, as appropriate, shall not approve petitions or
applications filed with respect to that employer under section
1154, 1184(c), 1101(a)(15)(H)(i)(b1), or 1101(a)(15)(E)(iii)
of this title during a period of at least 2 years for aliens to be
employed by the employer.
(iii) If the Secretary of Labor finds, after notice and opportunity
for a hearing, a willful failure to meet a condition of paragraph
(1) or a willful misrepresentation of material fact in an
attestation, in the course of which failure or misrepresentation
the employer displaced a United States worker employed by the
employer within the period beginning 90 days before and ending
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90 days after the date of filing of any visa petition or application
supported by the attestation—
(I) the Secretary of Labor shall notify the Secretary of State
and the Secretary of Homeland Security of such finding and
may, in addition, impose such other administrative remedies
(including civil monetary penalties in an amount not to
exceed $35,000 per violation) as the Secretary of Labor
determines to be appropriate; and
(II) the Secretary of State or the Secretary of Homeland
Security, as appropriate, shall not approve petitions or
applications filed with respect to that employer under section
1154, 1184(c), 1101(a)(15)(H)(i)(b1), or 1101(a)(15)(E)(iii)
of this title during a period of at least 3 years for aliens to be
employed by the employer.
(iv) It is a violation of this clause for an employer who has filed
an attestation under this subsection to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any other manner
discriminate against an employee (which term, for purposes of
this clause, includes a former employee and an applicant for
employment) because the employee has disclosed information
to the employer, or to any other person, that the employee
reasonably believes evidences a violation of this subsection, or
any rule or regulation pertaining to this subsection, or because
the employee cooperates or seeks to cooperate in an
investigation or other proceeding concerning the employer’s
compliance with the requirements of this subsection or any rule
or regulation pertaining to this subsection.
(v) The Secretary of Labor and the Secretary of Homeland
Security shall devise a process under which a nonimmigrant
under section 1101(a)(15)(H)(i)(b1) of this title or section
1101(a)(15)(E)(iii) of this title who files a complaint regarding a
violation of clause (iv) and is otherwise eligible to remain and
work in the United States may be allowed to seek other
appropriate employment in the United States for a period not to
exceed the maximum period of stay authorized for such
nonimmigrant classification.
(vi)
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(I) It is a violation of this clause for an employer who has
filed an attestation under this subsection to require a
nonimmigrant under section 1101(a)(15)(H)(i)(b1) of this
title or section 1101(a)(15)(E)(iii) of this title to pay a
penalty for ceasing employment with the employer prior to a
date agreed to by the nonimmigrant and the employer. The
Secretary of Labor shall determine whether a required
payment is a penalty (and not liquidated damages) pursuant
to relevant State law.
(II) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that an employer has committed a
violation of this clause, the Secretary of Labor may impose a
civil monetary penalty of $1,000 for each such violation and
issue an administrative order requiring the return to the
nonimmigrant of any amount paid in violation of this clause,
or, if the nonimmigrant cannot be located, requiring
payment of any such amount to the general fund of the
Treasury.
(vii)
(I) It is a failure to meet a condition of paragraph (1)(A) for
an employer who has filed an attestation under this
subsection and who places a nonimmigrant under section
1101(a)(15)(H)(i)(b1) of this title or section 1101(a)(15)(E)
(iii) of this title designated as a full-time employee in the
attestation, after the nonimmigrant has entered into
employment with the employer, in nonproductive status due
to a decision by the employer (based on factors such as lack
of work), or due to the nonimmigrant’s lack of a permit or
license, to fail to pay the nonimmigrant full-time wages in
accordance with paragraph (1)(A) for all such nonproductive
time.
(II) It is a failure to meet a condition of paragraph (1)(A)
for an employer who has filed an attestation under this
subsection and who places a nonimmigrant under section
1101(a)(15)(H)(i)(b1) of this title or section 1101(a)(15)(E)
(iii) of this title designated as a part-time employee in the
attestation, after the nonimmigrant has entered into
employment with the employer, in nonproductive status
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under circumstances described in subclause (I), to fail to
pay such a nonimmigrant for such hours as are designated
on the attestation consistent with the rate of pay identified
on the attestation.
(III) In the case of a nonimmigrant under section 1101(a)
(15)(H)(i)(b1) of this title or section 1101(a)(15)(E)(iii) of
this title who has not yet entered into employment with an
employer who has had approved an attestation under this
subsection with respect to the nonimmigrant, the provisions
of subclauses (I) and (II) shall apply to the employer
beginning 30 days after the date the nonimmigrant first is
admitted into the United States, or 60 days after the date
the nonimmigrant becomes eligible to work for the employer
in the case of a nonimmigrant who is present in the United
States on the date of the approval of the attestation filed
with the Secretary of Labor.
(IV) This clause does not apply to a failure to pay wages to
a nonimmigrant under section 1101(a)(15)(H)(i)(b1) of this
title or section 1101(a)(15)(E)(iii) of this title for
nonproductive time due to non-work-related factors, such as
the voluntary request of the nonimmigrant for an absence or
circumstances rendering the nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an
employer that is a school or other educational institution
from applying to a nonimmigrant under section 1101(a)(15)
(H)(i)(b1) of this title or section 1101(a)(15)(E)(iii) of this
title an established salary practice of the employer, under
which the employer pays to nonimmigrants under section
1101(a)(15)(H)(i)(b1) of this title or section 1101(a)(15)(E)
(iii) of this title and United States workers in the same
occupational classification an annual salary in disbursements
over fewer than 12 months, if—
(aa) the nonimmigrant agrees to the compressed annual
salary payments prior to the commencement of the
employment; and
(bb) the application of the salary practice to the
nonimmigrant does not otherwise cause the
nonimmigrant to violate any condition of the
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nonimmigrant’s authorization under this chapter to
remain in the United States.
(VI) This clause shall not be construed as superseding
clause (viii).
(viii) It is a failure to meet a condition of paragraph (1)(A) for
an employer who has filed an attestation under this subsection
to fail to offer to a nonimmigrant under section 1101(a)(15)(H)
(i)(b1) of this title or section 1101(a)(15)(E)(iii) of this title,
during the nonimmigrant’s period of authorized employment,
benefits and eligibility for benefits (including the opportunity to
participate in health, life, disability, and other insurance plans;
the opportunity to participate in retirement and savings plans;
and cash bonuses and non-cash compensation, such as stock
options (whether or not based on performance)) on the same
basis, and in accordance with the same criteria, as the employer
offers to United States workers.
(D) If the Secretary of Labor finds, after notice and opportunity for
a hearing, that an employer has not paid wages at the wage level
specified in the attestation and required under paragraph (1), the
Secretary of Labor shall order the employer to provide for payment
of such amounts of back pay as may be required to comply with the
requirements of paragraph (1), whether or not a penalty under
subparagraph (C) has been imposed.
(E) The Secretary of Labor may, on a case-by-case basis, subject
an employer to random investigations for a period of up to 5 years,
beginning on the date on which the employer is found by the
Secretary of Labor to have committed a willful failure to meet a
condition of paragraph (1) or to have made a willful
misrepresentation of material fact in an attestation. The authority
of the Secretary of Labor under this subparagraph shall not be
construed to be subject to, or limited by, the requirements of
subparagraph (A).
(F) Nothing in this subsection shall be construed as superseding or
preempting any other enforcement-related authority under this
chapter (such as the authorities under section 1324b of this title),
or any other Act.
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(4) For purposes of this subsection:
(A) The term “area of employment” means the area within normal
commuting distance of the worksite or physical location where the
work of the nonimmigrant under section 1101(a)(15)(H)(i)(b1) of
this title or section 1101(a)(15)(E)(iii) of this title is or will be
performed. If such worksite or location is within a Metropolitan
Statistical Area, any place within such area is deemed to be within
the area of employment.
(B) In the case of an attestation with respect to one or more
nonimmigrants under section 1101(a)(15)(H)(i)(b1) of this title or
section 1101(a)(15)(E)(iii) of this title by an employer, the employer
is considered to “displace” a United States worker from a job if the
employer lays off the worker from a job that is essentially the
equivalent of the job for which the nonimmigrant or nonimmigrants
is or are sought. A job shall not be considered to be essentially
equivalent of another job unless it involves essentially the same
responsibilities, was held by a United States worker with
substantially equivalent qualifications and experience, and is located
in the same area of employment as the other job.
(C)
(i) The term “lays off”, with respect to a worker—
(I) means to cause the worker’s loss of employment, other
than through a discharge for inadequate performance,
violation of workplace rules, cause, voluntary departure,
voluntary retirement, or the expiration of a grant or contract;
but
(II) does not include any situation in which the worker is
offered, as an alternative to such loss of employment, a
similar employment opportunity with the same employer at
equivalent or higher compensation and benefits than the
position from which the employee was discharged, regardless
of whether or not the employee accepts the offer.
(ii) Nothing in this subparagraph is intended to limit an
employee’s rights under a collective bargaining agreement or
other employment contract.
(D) The term “United States worker” means an employee who—
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(i) is a citizen or national of the United States; or
(ii) is an alien who is lawfully admitted for permanent residence,
is admitted as a refugee under section 1157 of this title, is
granted asylum under section 1158 of this title, or is an
immigrant otherwise authorized, by this chapter or by the
Secretary of Homeland Security, to be employed.
(t) [12] F
(1) Except as provided in paragraph (2), no person admitted under
section 1101(a)(15)(Q)(ii)(I) of this title, or acquiring such status after
admission, shall be eligible to apply for nonimmigrant status, an
immigrant visa, or permanent residence under this chapter until it is
established that such person has resided and been physically present in
the person’s country of nationality or last residence for an aggregate of
at least 2 years following departure from the United States.
(2) The Secretary of Homeland Security may waive the requirement of
such 2-year foreign residence abroad if the Secretary determines that
—
(A) departure from the United States would impose exceptional
hardship upon the alien’s spouse or child (if such spouse or child is
a citizen of the United States or an alien lawfully admitted for
permanent residence); or
(B) the admission of the alien is in the public interest or the
national interest of the United States.
(June 27, 1952, ch. 477, title II, ch. 2, § 212, 66 Stat. 182; July 18, 1956, ch.
629, title III, § 301 (a), 70 Stat. 575; Pub. L. 85–508, § 23, July 7, 1958, 72
Stat. 351; Pub. L. 86–3, § 20(b), Mar. 18, 1959, 73 Stat. 13; Pub. L. 86–648,
§ 8, July 14, 1960, 74 Stat. 505; Pub. L. 87–256, § 109(c), Sept. 21, 1961, 75
Stat. 535; Pub. L. 87–301, §§ 11–15, Sept. 26, 1961, 75 Stat. 654, 655; Pub.
L. 89–236, §§ 10, 15, Oct. 3, 1965, 79 Stat. 917, 919; Pub. L. 91–225, § 2,
Apr. 7, 1970, 84 Stat. 116; Pub. L. 94–484, title VI, § 601(a), (c), (d), Oct.
12, 1976, 90 Stat. 2300, 2301; Pub. L. 94–571, §§ 5, 7(d), Oct. 20, 1976, 90
Stat. 2705, 2706; Pub. L. 95–83, title III, § 307(q)(1), (2), Aug. 1, 1977, 91
Stat. 394; Pub. L. 95–549, title I, §§ 101, 102, Oct. 30, 1978, 92 Stat. 2065;
Pub. L. 96–70, title III, § 3201(b), Sept. 27, 1979, 93 Stat. 497; Pub. L. 96–
212, title II, § 203(d), (f), Mar. 17, 1980, 94 Stat. 107; Pub. L. 96–538, title
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IV, § 404, Dec. 17, 1980, 94 Stat. 3192; Pub. L. 97–116, §§ 4, 5(a)(1), (2),
(b), 18(e), Dec. 29, 1981, 95 Stat. 1611, 1612, 1620; Pub. L. 98–454, title
VI, § 602[(a)], Oct. 5, 1984, 98 Stat. 1737; Pub. L. 98–473, title II, § 220(a),
Oct. 12, 1984, 98 Stat. 2028; Pub. L. 99–396, § 14(a), Aug. 27, 1986, 100
Stat. 842; Pub. L. 99–570, title I, § 1751(a), Oct. 27, 1986, 100 Stat. 3207–
47; Pub. L. 99–639, § 6(a), Nov. 10, 1986, 100 Stat. 3543; Pub. L. 99–653,
§ 7(a), Nov. 14, 1986, 100 Stat. 3657; Pub. L. 100–204, title VIII, § 806(c),
Dec. 22, 1987, 101 Stat. 1399; Pub. L. 100–525, §§ 3(1)(A), 7(c)(1), (3),
8(f), 9(i), Oct. 24, 1988, 102 Stat. 2614, 2616, 2617, 2620; Pub. L. 100–690,
title VII, § 7349(a), Nov. 18, 1988, 102 Stat. 4473; Pub. L. 101–238, § 3(b),
Dec. 18, 1989, 103 Stat. 2100; Pub. L. 101–246, title I, § 131(a), (c), Feb.
16, 1990, 104 Stat. 31; Pub. L. 101–649, title I, § 162(e)(1), (f)(2)(B), title
II, §§ 202(b), 205(c)(3), title V, §§ 511(a), 514(a), title VI, § 601(a), (b), (d),
Nov. 29, 1990, 104 Stat. 5011, 5012, 5014, 5020, 5052, 5053, 5067, 5075;
Pub. L. 102–232, title III, §§ 302(e)(6), (9), 303(a)(5)(B), (6), (7)(B), 306(a)
(10), (12), 307(a)–(g), 309(b)(7), Dec. 12, 1991, 105 Stat. 1746, 1747,
1751, 1753–1755, 1759; Pub. L. 103–43, title XX, § 2007(a), June 10, 1993,
107 Stat. 210; Pub. L. 103–317, title V, § 506(a), Aug. 26, 1994, 108 Stat.
1765; Pub. L. 103–322, title XIII, § 130003(b)(1), Sept. 13, 1994, 108 Stat.
2024; Pub. L. 103–416, title II, §§ 203(a), 219(e), (z)(1), (5), 220(a), Oct.
25, 1994, 108 Stat. 4311, 4316, 4318, 4319; Pub. L. 104–132, title IV,
§§ 411, 412, 440(d), Apr. 24, 1996, 110 Stat. 1268, 1269, 1277; Pub. L. 104–
208, div. C, title I, § 124(b)(1), title III, §§ 301(b)(1), (c)(1), 304(b), 305(c),
306(d), 308(c)(2)(B), (d)(1), (e)(1)(B), (C), (2)(A), (6), (f)(1)(C)–(F), (3)(A),
(g)(1), (4)(B), (10)(A), (H), 322(a)(2)(B), 341(a), (b), 342(a), 343, 344(a),
345(a), 346(a), 347(a), 348(a), 349, 351(a), 352(a), 355, title V, § 531(a),
title VI, §§ 602(a), 622(b), 624(a), 671(e)(3), Sept. 30, 1996, 110 Stat.
3009–562, 3009–576, 3009–578, 3009–597, 3009–607, 3009–612, 3009–
616, 3009–619 to 3009–622, 3009–625, 3009–629, 3009–635 to 3009–641,
3009–644, 3009–674, 3009–689, 3009–695, 3009–698, 3009–723; Pub. L.
105–73, § 1, Nov. 12, 1997, 111 Stat. 1459; Pub. L. 105–277, div. C, title IV,
§§ 412(a)–(c), 413(a)–(e)(1), (f), 415(a), 431(a), div. G, subdiv. B, title XXII,
§ 2226(a), Oct. 21, 1998, 112 Stat. 2681–642 to 2681–651, 2681–654,
2681–658, 2681–820; Pub. L. 105–292, title VI, § 604(a), Oct. 27, 1998, 112
Stat. 2814; Pub. L. 106–95, §§ 2(b), 4(a), Nov. 12, 1999, 113 Stat. 1312,
1317; Pub. L. 106–120, title VIII, § 809, Dec. 3, 1999, 113 Stat. 1632; Pub.
L. 106–313, title I, §§ 106(c)(2), 107(a), Oct. 17, 2000, 114 Stat. 1254,
1255; Pub. L. 106–386, div. A, §§ 107(e)(3), 111(d), div. B, title V,
§§ 1505(a), (c)(1), (d)–(f), 1513(e), Oct. 28, 2000, 114 Stat. 1478, 1485,
1525, 1526, 1536; Pub. L. 106–395, title II, § 201(b)(1), (2), Oct. 30, 2000,
114 Stat. 1633, 1634; Pub. L. 106–396, title I, § 101(b)(1), Oct. 30, 2000,
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114 Stat. 1638; Pub. L. 107–56, title IV, § 411(a), title X, § 1006(a), Oct. 26,
2001, 115 Stat. 345, 394; Pub. L. 107–150, § 2(a)(2), Mar. 13, 2002, 116
Stat. 74; Pub. L. 107–273, div. C, title I, § 11018(c), Nov. 2, 2002, 116 Stat.
1825; Pub. L. 108–77, title IV, § 402(b), (c), Sept. 3, 2003, 117 Stat. 940,
946; Pub. L. 108–193, §§ 4(b)(4), 8(a)(2), Dec. 19, 2003, 117 Stat. 2879,
2886; Pub. L. 108–447, div. J, title IV, §§ 422(a), 423, 424(a)(1), (b), Dec. 8,
2004, 118 Stat. 3353–3355; Pub. L. 108–449, § 1(b)(2), Dec. 10, 2004, 118
Stat. 3470; Pub. L. 108–458, title V, §§ 5501(a), 5502(a), 5503, Dec. 17,
2004, 118 Stat. 3740, 3741; Pub. L. 109–13, div. B, title I, §§ 103(a)–(c),
104, title V, § 501(d), May 11, 2005, 119 Stat. 306–309, 322; Pub. L. 109–
162, title VIII, § 802, Jan. 5, 2006, 119 Stat. 3054; Pub. L. 109–271, § 6(b),
Aug. 12, 2006, 120 Stat. 762; Pub. L. 110–161, div. J, title VI, § 691(a), (c),
Dec. 26, 2007, 121 Stat. 2364, 2365; Pub. L. 110–229, title VII, § 702(b)(2),
(3), (d), May 8, 2008, 122 Stat. 860, 862; Pub. L. 110–293, title III, § 305,
July 30, 2008, 122 Stat. 2963; Pub. L. 110–340, § 2(b), Oct. 3, 2008, 122
Stat. 3736; Pub. L. 110–457, title II, §§ 222(f)(1), 234, Dec. 23, 2008, 122
Stat. 5071, 5074; Pub. L. 111–122, § 3(b), Dec. 22, 2009, 123 Stat. 3481;
Pub. L. 111–287, § 2, Nov. 30, 2010, 124 Stat. 3058; Pub. L. 113–4, title VIII,
§ 804, Mar. 7, 2013, 127 Stat. 111.)
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