GENERAL
CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS SEC. 212 (a)
Classes of Aliens Ineligible for Visas or Admission--Except as otherwise
provided in this Act, aliens who are inadmissible under the following paragraphs
are ineligible to receive visas and ineligible to be admitted to the United
States: (1) Health-related grounds. (A) In general. Any alien (i) who is determined (in accordance with regulations prescribed by
the Secretary of Health and Human Services) to have a communicable disease of
public health significance, which shall include infection with the etiologic
agent for acquired immune deficiency syndrome, (ii) who seeks admission as an immigrant, or who seeks adjustment
of status to the status of an alien lawfully admitted for permanent residence,
and who has failed to present documentation of having received vaccination
against vaccine-preventable diseases, which shall include at least the following
diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids,
pertussis, influenza type B and hepatitis B, and any other vaccinations against
vaccine‑preventable diseases recommended by the Advisory Committee for
Immunization Practices, (iii) who is determined (in accordance with regulations prescribed
by the Secretary of Health and Human Services in consultation with the Attorney
General) (I) to have a physical or mental disorder and behavior associated
with the disorder that may pose, or has posed, a threat to the property, safety,
or welfare of the alien or others, or (II) to have had a physical or mental disorder and a history of
behavior associated with the disorder, which behavior has posed a threat to the
property, safety, or welfare of the alien or others and which behavior is likely
to recur or to lead to other harmful behavior, or (iv) who is determined (in accordance with regulations prescribed
by the Secretary of Health and Human Services) to be a drug abuser or addict, is
inadmissible. (B)
Waiver authorized. For provision authorizing waiver of certain clauses of
subparagraph (A), see subsection (g). (2) Criminal and related grounds.
(A) Conviction of certain crimes. (i) In general. Except as provided in clause (ii), any alien
convicted of, or who admits having committed, or who admits committing acts
which constitute the essential elements of (I) a crime involving moral turpitude (other than a purely
political offense) or an attempt or conspiracy to commit such a crime, or (II) a violation of (or a conspiracy or attempt to violate) any law
or regulation of a State, the United States, or a foreign country relating to a
controlled substance (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), is inadmissible. (ii) Exception. Clause (i)(I) shall not apply to an alien who committed only one crime if (I) the crime was committed when the alien was under 18 years of
age, and the crime was committed (and the alien released from any confinement to
a prison or correctional institution imposed for the crime) more than 5 years
before the date of application for a visa or other documentation and the date of
application for admission to the United States, or (II) the maximum penalty possible for the crime of which the alien
was convicted (or which the alien admits having committed or of which the acts
that the alien admits having committed constituted the essential elements) did
not exceed imprisonment for one year and, if the alien was convicted of such
crime, the alien was not sentenced to a term of imprisonment in excess of 6
months (regardless of the extent to which the sentence was ultimately executed). (B) Multiple criminal convictions. Any alien convicted of 2 or more
offenses (other than purely political offenses), regardless of whether the
conviction was in a single trial or whether the offenses arose from a single
scheme of misconduct and regardless of whether the offenses involved moral
turpitude, for which the aggregate sentences to confinement were 5 years or more
is inadmissible. (C) Controlled substance traffickers. Any alien who the consular or
immigration office knows or has reason to believe is or has been an illicit
trafficker in any such controlled substance (or is or has been a knowing
assister, abettor, conspirator, or colluder with others in the illicit
trafficking in any such controlled substance, 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 (i) who has committed in the United States at any time a serious
criminal offense (as defined in section 101(h)), (ii)
for whom immunity from criminal jurisdiction was exercised with respect to that
offense, (iii)
who as a consequence of the offense and exercise of immunity has departed from
the United States, and (iv) who has not subsequently submitted fully to the jurisdiction
of the court in the United States having jurisdiction with respect to that
offense, is inadmissible. (F) Waiver authorized. For provision authorizing waiver of
certain subparagraphs of this paragraph, see subsection (h).
(3) Security and related grounds. (A)
In general. Any alien who a consular officer or the Attorney General knows, or
has reasonable ground to believe, seeks to enter the United States to engage
solely, principally, or incidentally in
(1)any activity (I)
to violate any law of the United States relating to espionage or sabotage or (II) to violate or evade any law prohibiting the export from the
United States of goods, technology, or sensitive information, (ii)
any other unlawful activity, or (iii) any activity a purpose of which is the opposition to, or the
control or overthrow of, the Government of the United States by force, violence,
or other unlawful means, is inadmissible. (B)
Terrorist activities. (i)
In general. Any alien who (I)
has engaged in a terrorist activity, (III) a consular officer or the Attorney General 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 (iii)), (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 (iv)) of a foreign
terrorist organization, as designated by the Secretary under section 219, or (V) is a member of a foreign terrorist organization, as designated
by the Secretary under section 219, is inadmissible. An alien who is an officer, official,
representative, or spokesman of the Palestine Liberation Organization is
considered, for purposes of this Act, to be engaged in a terrorist activity. (ii) Terrorist activity defined. As used in this Act, the
term "terrorist activity" means any activity which is unlawful under
the laws of the place where it is committed (or which, if 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 high-jacking or sabotage of any conveyance (including an aircraft, vessel,
or vehicle). (II) The seizing or detaining, and threatening to kill, injure, or
continue to detain, another individual in order to compel a third person
(including a governmental organization) to do or abstain from doing any act as
an explicit or implicit condition for the release of the individual seized or
detained. (III) A violent attack upon an internationally protected person (as
defined in section 1116(b)(4) of title 18, United States Code) or upon the
liberty of such a person. (IV)
An assassination. (V)
The use of any
(a)
biological agent, chemical agent, or nuclear weapon or device, or
(b) explosive or firearm (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. (iii) Engage in terrorist activity defined. As used in this
Act, the term "engage in terrorist activity" means to commit, in an
individual capacity or as a member of an organization, an act of terrorist
activity or an act which the actor knows, or reasonably should know, affords
material support to any individual, organization, or government in conducting a
terrorist activity at any time, including any of the following acts: (I)
The preparation or planning of a terrorist activity. (II)
The gathering of information on potential targets for terrorist activity. (III) The providing of any type of material support, including a
safe house, transportation, communications, funds, false documentation or
identification, weapons, explosives, or training, to any individual the actor
knows or has reason to believe has committed or plans to commit a terrorist
activity. (IV) The soliciting of funds or other things of value for terrorist
activity or for any terrorist organization. (V) The solicitation of any individual for membership in a
terrorist organization, terrorist government, or to engage in a terrorist
activity. (iv) 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. (C)
Foreign policy. (i) In general. An alien whose entry or proposed activity in the
United States the Secretary of State has reasonable ground to believe would have
potentially serious adverse foreign policy consequences for the United States is
inadmissible. (ii) Exception for officials. An alien who is an official of a
foreign government or a purported government, or who is a candidate for election
to a foreign government office during the period immediately preceding the
election for that office, shall not be excludable or subject to restrictions or
conditions on entry into the United States under clause (i) solely because of
the alien's past, current, or expected beliefs, statements, or associations, if
such beliefs, statements, or associations would be lawful within the United
States. (iii) Exception for other aliens. An alien, not described in
clause (ii), shall not be excludable or subject to restrictions or conditions on
entry into the United States under clause (i) because of the alien's past,
current, or expected beliefs, statements, or associations, if such beliefs,
statements, or associations would be lawful within the United States, unless the
Secretary of State personally determines that the alien's admission would
compromise a compelling United States foreign policy interest. (iv) Notification of determinations. If a determination is made
under clause (iii) with respect to an alien, the Secretary of State must notify
on a timely basis the chairmen of the Committees on the Judiciary and Foreign
Affairs of the House of Representatives and of the Committees on the Judiciary
and Foreign Relations of the Senate of the identity of the alien and the reasons
for the determination. (D)
Immigrant membership in totalitarian party. (i) In general. Any immigrant who is or has been a member of or
affiliated with the Communist or any other totalitarian party (or subdivision or
affiliate thereof), domestic or foreign is inadmissible. (ii) Exception for involuntary membership. Clause (i) shall not
apply to an alien because of membership or affiliation if the alien establishes
to the satisfaction of the consular officer when applying for a visa (or to the
satisfaction of the Attorney General when applying for admission) that the
membership or affiliation is or was involuntary, or is or was solely when under
16 years of age, by operation of law, or for purposes of obtaining employment,
food rations, or other essentials of living and whether necessary for such
purposes. (iii) Exception for past membership. Clause (i) shall not
apply to an alien because of membership or affiliation if the alien establishes
to the satisfaction of the consular officer when applying for a visa (or to the
satisfaction of the Attorney General when applying for admission) that (I)
the membership or affiliation terminated at least (a)
2 years before the date of such application, or (b) 5 years before the date of such application, in the case of an
alien whose membership or affiliation was with the party controlling the
government of a foreign state that is a totalitarian dictatorship as of such
date, and (II)
the alien is not a threat to the security of the United States. (iv) Exception for close family members The Attorney General
may, in the Attorney General's discretion, waive the application of clause (i)
in the case of an immigrant who is the parent, spouse, son, daughter, brother,
or sister of a citizen of the United States or a spouse, son, or daughter of an
alien lawfully admitted for permanent residence for humanitarian purposes, to
assure family unity, or when it is otherwise in the public interest if the
immigrant is not a threat to the security of the United States. (E)
Participants in nazi persecutions or genocide. (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 has engaged in
conduct that is defined as genocide for purposes of the International Convention
on the Prevention and Punishment of Genocide is inadmissible. (4) Public charge. (A)
In general. Any alien who, in the opinion of the consular officer at the time of
application for a visa, or in the opinion of the Attorney General at the time of
application for admission or adjustment of status, is likely at any time to
become a public charge is excludable [inadmissible]. (B)
Factors to be taken into account. (i) In determining whether an alien is excludable [inadmissible]
under this paragraph, the consular officer or the Attorney General shall at a
minimum consider the alien's (I)
age; (II)
health; (III)
family status; (IV)
assets, resources, and financial status; and (V)
education and skills. (ii) In addition to the factors under clause (i), the consular
officer or the Attorney General may also consider any affidavit of support under
section 213A for purposes of exclusion under this paragraph. (C) Family-sponsored immigrants. Any alien who seeks
admission or adjustment of status under a visa number issued under section
201(b)(2) or 203(a) is excludable [inadmissible] under this paragraph unless (i) the alien has obtained (I) status as a spouse or a child of a United States citizen
pursuant to clause (ii), (iii), or (iv) of Section 204(a)(1)(A), or (II)
classification pursuant to clause (ii) or (iii) of section 204(a)(1)(B); or (ii) the person petitioning for the alien's admission (including
any additional sponsor required under section 213A(f)) has executed an affidavit
of support described in section 213A with respect to such alien. (D) Certain employment-based immigrant. Any alien who seeks
admission or adjustment of status under a visa number issued under section
203(b) by virtue of a classification petition filed by a relative of the alien
(or by an entity in which such relative has a significant ownership interest) is
excludable under this paragraph unless such relative has executed an affidavit
of support described in section 213A with respect to such alien. (5) Labor certification and qualifications for certain immigrants. (A)
Labor certification. (i) In general. Any alien who seeks to enter the United States for
the purpose of performing skilled or unskilled labor is inadmissible, unless the
Secretary of Labor has determined and certified to the Secretary of State and
the Attorney General that (I) there are not sufficient workers who are able, willing,
qualified (or equally qualified in the case of an alien described in clause
(ii)) and available at the time of application for a visa and admission to the
United States and at the place where the alien is to perform such skilled or
unskilled labor, and (II) the employment of such alien will not adversely affect the
wages and working conditions of workers in the United States similarly employed. (ii) Certain aliens subject to special rule. For purposes of
clause (i)(I), an alien described in this clause is an alien who (I)
is a member of the teaching profession, or (II)
has exceptional ability in the sciences or arts. (iii)
Professional athletes. (I) In general. A certification made under clause (i) with respect
to a professional athlete shall remain valid with respect to the athlete after
the athlete changes employer, if the new employer is a team in the same sport as
the team which employed the athlete when the athlete first applied for the
certification. (II) Definition. For purposes of subclause (1), 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. (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 11 of the National Board
of Medical Examiners if the alien was fully and permanently licensed to practice
medicine in a State on January 9, 1978, and was practicing medicine in a State
on that date. (C) Uncertified foreign health-care workers. Any alien
who seeks to enter the United States for the purpose of performing labor as a
health-care worker, other than a physician, is inadmissible unless the alien
presents to the consular officer, or, in the case, of an adjustment of status,
the Attorney General, a certificate from the Commission on Graduates of Foreign
Nursing Schools, or a certificate from an equivalent independent credentialing
organization approved by the Attorney General in consultation with the Secretary
of Health and Human Services, verifying that (i) the alien's education, training, license, and experience (I) meet all applicable statutory and regulatory requirements for
entry into the United States under the classification specified in the
application; (II)
are comparable with that required for an American health-care worker of the same
type; and (III)
are authentic and, in the case of a license, unencumbered; (ii) the alien has the level of competence in oral and written
English considered by the Secretary of Health and Human Services, in
consultation with the Secretary of Education, to be appropriate for health care
work of the kind in which the alien will be engaged, as shown by an appropriate
score on one or more nationally recognized, commercially available, standardized
assessments of the applicant's ability to speak and write; and (iii) if a majority of States licensing the profession in which the
alien intends to work recognize a test predicting the success on the
profession's licensing or certification examination, the alien has passed such a
test or has passed such an examination. For purposes of clause (ii), determination of the standardized
tests required and of the minimum scores that are appropriate are within the
sole discretion of the Secretary of Health and Human Services and are not
subject to further administrative or judicial review. (D) Application of grounds. The grounds of inadmissibility of
aliens under subparagraphs (A) and (B) shall apply to immigrants seeking
admission or adjustment of status under paragraph (2) or (3) of section 203(b). (6) Illegal entrants
and immigration violators. (A)
Aliens present without admission or parole. (i) In general. An alien present in the United States without being
admitted or paroled, or who arrives in the United States at any time or place
other than as designated by the Attorney General, is inadmissible. (ii) Exception for
certain battered women and children. Clause (i) shall not apply to an
alien who demonstrates that (I) the alien qualifies for immigrant status under subparagraph (A)(iii),
(A)(iv), (B)(ii), or (13)(iii) of section 204(a)(1), (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 sub-clause (I) or (II)
and the alien's unlawful entry into the United States. (B) Failure to attend removal proceeding. Any alien who
without reasonable cause fails or refuses to attend or remain in attendance at a
proceeding to determine the alien's inadmissibility or deportability and who
seeks admission to the United States within 5 years of such alien's subsequent
departure or removal is inadmissible. (C)
Misrepresentation. (i) In general. Any alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to procure or
has procured) a visa, other documentation, or admission into the United States
or other benefit provided under this Act is inadmissible. (ii) Falsely claiming citizenship. Any alien who falsely
represents, or has falsely represented, himself or herself to be a citizen of
the United States for any purpose or benefit under this Act (including section
274A) or any other Federal or State Law is inadmissible. (iii)
Waiver authorized. For provision authorizing waiver of clause (i), see
subsection (i). (D)
Stowaways. Any alien who is a stowaway is inadmissible. (E)
Smugglers. (i) In general. Any alien who at any time knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to enter or to try to enter
the United States in violation of law is inadmissible. (ii) Special rule in the case of family reunification. Clause (i)
shall not apply in the case of alien who is an eligible immigrant (as defined in
section 301(b)(1) of the Immigration Act of 1990), was physically present in the
United States on May 5, 1988, and is seeking admission as an immediate relative
or under section 203(a)(2) (including under section 112 of the Immigration Act
of 1990) or benefits under section 301(a) of the Immigration Act of 1990 if the
alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided
only the alien's spouse, parent, son, or daughter (and no other individual) to
enter the United States in violation of law. (iii)
Waiver authorized. For provision authorizing waiver of clause (i), see
subsection (d) (11). (F)
Subject of civil penalty. (i)
In general. An alien who is the subject of a final order for violation of
section 274C is inadmissible.
(ii) Waiver authorized. For provision authorizing waiver of clause
(i), see subsection
(d)(12). (G) Student visa
abusers. An alien who obtains the status of a nonimmigrant under section
101(a)(15)(F)(i) and who violates a term or condition of such status under
section 214(l) is excludable until the alien has been outside the United States
for a continuous period of 5 years after the date of the violation.
(7) Documentation requirements.
(A) Immigrants. (i)
In general. Except as otherwise specifically provided in this Act, any immigrant
at the time of application for admission (I) who is not in possession of a valid un-expired immigrant visa,
reentry permit, border crossing identification card, or other valid entry
document required by this Act, and a valid un-expired passport, or other
suitable travel document, or document of identity and nationality if such
document is required under the regulations issued by the Attorney General under
section 211(a), or (II)
whose visa has been issued without compliance with the provisions of section
203, is
inadmissible. (ii)
Waiver authorized. For provision authorizing waiver of clause (i), see
subsection (k). (B) Nonimmigrants. (i) In general. Any nonimmigrant who (1) is not in possession of a passport valid for a minimum of six
months from the date of the expiration of the initial period of the alien's
admission or contemplated initial period of stay authorizing the alien to return
to the country from which the alien came or to proceed to and enter some other
country during such period, or (II) is not in possession of a valid nonimmigrant visa or border
crossing identification card at the time of application for admission, is
inadmissible. (ii)
General waiver authorized. For provision authorizing waiver of clause (i), see
subsection (d) (4). (iii) Guam visa waiver.
For provision authorizing waiver of clause (i) in the case of visitors to Guam,
see subsection (1). (iv) Visa waiver pilot program. For authority to waive the
requirement of clause (i) under a pilot program, see section 217. (8) Ineligible for citizenship. (A)
In general. Any immigrant who is permanently ineligible to citizenship is
inadmissible. (B) Draft evaders. Any person who has departed from or who has
remained outside the United States to avoid or evade training or service in the
armed forces in time of war or a period declared by the President to be a
national emergency is inadmissible, except that this subparagraph shall not
apply to an alien who at the time of such departure was a nonimmigrant and who
is seeking to reenter the United States as a nonimmigrant. (9) Aliens previously removed. (A)
Certain
alien previously removed. (i) Arriving aliens. Any alien who has been ordered removed under
section 235(b) (1) or at the end of proceedings under section 240 initiated upon
the alien's arrival in the United States and who again seeks admission within 5
years of the date of such removal (or within 20 years in the case of a second or
subsequent removal or at any time in the case of an alien convicted of an
aggravated felony) is inadmissible. (ii)
Other aliens. Any alien not described in clause (i) who (I)
has been ordered removed under section 240 or any other provision of law, or (II)
departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's
departure or removal (or within 20 years of such date in the case of a second or
subsequent removal or at any time in the case of an alien convicted of an
aggravated felony) is inadmissible. (iii) Exception. Clauses (i) and (ii) shall not apply to an alien
seeking admission within a period if, prior to the date of the alien's re-embarkation
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)
Alien unlawfully present. (i)
In general. Any alien (other than an alien lawfully admitted for permanent
residence) who (I) was unlawfully present in the United States for a period of
more than 180 days but less than 1 year, voluntarily departed the United States
(whether or not pursuant to section 244(e)) prior to the commencement of
proceedings under section 235(b)(1) or section 240, and again seeks admission
within 3 years of the date of such alien's departure or removal, or (II) has been unlawfully present in the United States for one year
or more, and who again seeks admission within 10 years of the date of such
alien's departure or removal from the United States, is
inadmissible. (ii)
Construction of unlawful presence. For purposes of this paragraph, an
alien is deemed to be unlawfully present in the United States if the alien is
present in the United States after the expiration of the period of stay
authorized by the Attorney General or is present in the United States without
being admitted or paroled. (iii)
Exceptions. (I) Minors. No period of time in which an alien is under 18 years
of age shall be taken into account in determining the period of unlawful
presence in the United States under clause (i). (II) Asylees. No period of time in which an alien has a bona
fide application for asylum pending under section 208 shall be taken into
account in determining the period of unlawful presence in the United States
under clause (i) unless the alien during such period was employed without
authorization in the United States. (III) Family Unity. No period of time in which the alien is a
beneficiary of family unity protection pursuant to section 301 of the
immigration Act of 1990 shall be taken into account in determining the period of
unlawful presence in the United States under clause (i). (IV)165
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 sub-clause (III) of that paragraph. (iv)
Tolling for good cause. In the case of an alien who (I)
has been lawfully admitted or paroled into the United States, (II) has filed a non-frivolous application for a change or
extension of status before the date of expiration of the period of stay
authorized by the Attorney General, and (III) has not been employed without authorization in the United
States before or during the pendency of such application, the calculation of the period of time specified in clause (i)(I)
shall be tolled during the pendency of such application, but not to exceed 120
days. (v) Waiver. The Attorney General has sole discretion to waive
clause (i) in the case of an immigrant who is the spouse or son or daughter of a
United States citizen or of an alien lawfully admitted for permanent residence,
if it is established to the satisfaction of the Attorney General that the
refusal of admission to such immigrant alien would result in extreme hardship to
the citizen or lawfully resident spouse or parent of such alien. No court shall
have jurisdiction to review a decision or action by the Attorney General
regarding a waiver under this clause. (C)
Aliens unlawfully present after previous immigration violations. (i)
In general. Any alien who (I)
has been unlawfully present in the United States for an aggregate period of more
than 1 year, or (II)
has been ordered removed under section 235(b)(1), section 240, or any other
provision of law, and who enters or attempts to reenter the United States without
being admitted is inadmissible. (ii) Exception. Clause (i) shall not apply to an alien seeking
admission more than 10 years after the date of the alien's last departure from
the United States if, prior to the alien's re-embarkation at a place outside the
United States or attempt to be readmitted from a foreign contiguous territory,
the Attorney General has consented to the alien's reapplying for admission. (10) Miscellaneous. (A) Practicing polygamists. Any immigrant who is coming to
the United States to practice polygamy is inadmissible. (B)
Guardian required to accompany helpless alien. Any alien (i) who is accompanying another alien who is inadmissible and who
is certified to be helpless from sickness, mental or physical disability, or
infancy pursuant to section 232(c), and (ii)
whose protection or guardianship is determined to be required by the alien
described in clause (i), is
inadmissible. (C)
International
child abduction. (i) In general. Except as provided in clause (ii), any alien
who, after entry of an order by a court in the United States granting custody to
a person of a United States citizen child who detains or retains the child, or
withholds custody of the child, outside the United States from the person
granted custody by that order, is inadmissible until the child is surrendered to
the person granted custody by that order. (ii) Exception. Clause (i) shall not apply so long as the
child is located in a foreign state that is a party to the Hague Convention on
the Civil Aspects of International Child Abduction. (D) Unlawful voters. Any alien who has voted in violation of any
Federal, State, or local constitutional provision, statute, ordinance, or
regulation is excludable. (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 excludable. (b)
Notices of Denials. – (1) Subject to paragraphs (2) and (3), if an alien's application
for a visa, for admission to the United States, or for adjustment of status is
denied by an immigration or consular officer because the officer determines the
alien to be inadmissible under subsection (a), the officer shall provide the
alien with a timely written notice that (A)
states the determination, and (B) lists the specific provision or provisions of law under which
the alien is inadmissible or ineligible for adjustment of status. (2) The Secretary of State may waive the requirements of paragraph
(1) with respect to a particular alien or any class of classes of inadmissible aliens.
(3) Paragraph (1) does not apply to any alien inadmissible under
paragraph (2) or (3) of subsection (a). (c)
[Repealed]
(d)
Temporary admission of non-immigrants. (1) The Attorney General shall determine whether a ground for
exclusion exists with respect to a nonimmigrant described in section
101(a)(15)(S). The Attorney General, in the Attorney General's discretion, may
waive the application of subsection (a) (other than paragraph (3)(E) in the case
of a nonimmigrant described in section 101(a)(15)(S), if the Attorney General
considers it to be in the national interest to do so. Nothing in this section
shall be regarded as prohibiting the Immigration and Naturalization Service from
instituting removal proceedings against an alien admitted as a nonimmigrant
under section 101(a)(15)(S) for conduct committed after the alien's admission
into the United States, or for conduct or a condition that was not disclosed to
the Attorney General prior to the alien's admission as a nonimmigrant under
section 101(a)(15)(S). (2) [Removed.] (3) Except as provided in
this subsection, an alien (A)
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 (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 (B) who is inadmissible under subsection (a) (other than paragraphs
(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and (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. (5)
(A)
The Attorney General may, except as provided in subparagraph (B) or in
section 214(f), in his discretion parole into the United States temporarily
under such conditions as he may prescribe only on a case‑by‑case
basis for urgent humanitarian reasons or significant public benefit any alien
applying for admission to the United States, but such parole of such alien shall
not be regarded as an admission of the alien and when the purposes of such
parole shall, in the opinion of the Attorney General, have been served the alien
shall forthwith return or be returned to the custody from which he was paroled
and thereafter his case shall continue to be dealt with in the same manner as
that of any other applicant for admission to the United States. (B)
The Attorney General may not parole into the United States an alien who is a
refugee unless the Attorney General determines that compelling reasons in the
public interest with respect to that particular alien require that the alien be
paroled into the‑United States rather than be admitted as a refugee under
section 207. (6) [Removed.] (7)
The provisions of subsection (a) (other than paragraph (7))
shall be applicable to any alien who shall leave Guam, 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. Any alien described in this paragraph, who is excluded from admission
to the United States, shall be immediately removed in the manner provided by
section 241(c) of this Act. (8)
Upon a basis of reciprocity accredited officials of foreign governments, their
immediate families, attendants, servants, and personal employees may be admitted
in immediate and continuous transit through the United States without regard to
the provisions of this section except paragraphs (3)(A),
(3)(B), (3)(C),
and (7)(B) of subsection (a) of this section. (9) and (10) [Removed.] (11)
The Attorney General may, in his discretion for humanitarian purposes, to assure
family unity, or when it is otherwise in the public interest, waive application
of clause (i) of subsection (a)(6)(E)
in the case of any alien lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an order of removal,
and who is otherwise admissible to the United States as a returning resident
under section 211(b) and in the case of an
alien seeking admission or adjustment of status as an immediate relative or
immigrant under section 203(a) (other than
paragraph (4) thereof), if the alien has encouraged, induced, assisted, abetted,
or aided only an individual who at the time of such action was the alien's
spouse, parent, son, or daughter (and no other individual) to enter the United
States in violation of law. (12)
The Attorney General may, in the discretion of the Attorney General for
humanitarian purposes or to assure family unity, waive application of clause (i)
of subsection (a)(6)(F) (A) in the case of an alien lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not under an order of
deportation or removal and who is otherwise admissible to the United States as a
returning resident under section 211 (b), and (B) in the case of an alien seeking admission or adjustment of
status under section 201(b)(2)(A) or under section 203(a), (e)
No person admitted under section 101(a)(15)(J) or acquiring such status after
admission (i) whose participation in the program for which he came to the United
States was financed in whole or in part, directly or indirectly, by an agency of
the Government of the United States or by the government of the country of his
nationality or his last residence, (ii) who at the time of admission or
acquisition of status under section 101(a)(15)(J) was a national or resident of
a country which the Director of the United States Information Agency, pursuant
to regulations prescribed by him, had designated as clearly requiring the
services of persons engaged in the field of specialized knowledge or skill in
which the alien was engaged, or (iii) who came to the United States or acquired
such status in order to receive graduate medical education or training, shall be
eligible to apply for an immigrant visa, or for permanent residence, or for a
nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until it
is established that such person has resided and been physically present in the
country of his nationality or his last residence for a n 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 214(k): And provided further,
That, except in the case of an alien described in clause (iii), the Attorney
General may, upon the favorable recommendation of the Director, waive such
two‑year foreign residence requirement in any case in which the foreign
country of the alien's nationality or last residence has furnished the Director
a statement in writing that it has no objection to such waiver in the case of
such alien. (f)
Whenever the President finds that the entry of any aliens or of any class of
aliens into the United States would be detrimental to the interests of the
United States, he may by proclamation, and for such period as he shall deem
necessary, suspend the entry of all aliens or any class of aliens as immigrants
or non-immigrants, or impose on the entry of aliens any restrictions he may deem
to be appropriate. Whenever the Attorney General finds that a commercial airline
has failed to comply with regulations of the Attorney General relating to
requirements of airlines for the detection of fraudulent documents used by
passengers traveling to the United States (including the training of personnel
in such detection), the Attorney General may suspend the entry of some or all
aliens transported to the United States by such airline. (g)
The Attorney General may waive the application of
(1) subsection (a)(1)(A)(i) in the case of any alien who (A) is the spouse or the unmarried son or daughter, or the minor
unmarried lawfully adopted child, of a United States citizen, or of an alien
lawfully admitted for permanent residence, or of an alien who has been issued an
immigrant visa, or (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; in accordance with such terms, conditions, and controls, if any,
including the giving of bond, as the Attorney General, in the discretion of the
Attorney General after consultation with the Secretary of Health and Human
Services, may by regulation prescribe; (2) subsection (a) (1) (A) (ii) in the case of any alien (A) who receives vaccination against the vaccine-preventable
disease or diseases for which the alien has failed to present documentation of
previous vaccination, (B) for whom a civil surgeon, medical officer, or panel physician
(as those terms are defined by section 34.2 of title 42 of the Code of Federal
Regulations) certifies, according to such regulations as the Secretary of Health
and Human Services may prescribe, that such vaccination would not be medically
appropriate, or (C) under such circumstances as the Attorney General provides by
regulation, with respect to whom the requirement of such a vaccination would be
contrary to the alien's religious beliefs or moral convictions; or (3) subsection (a)(1)(A)(iii) in the case of any alien, in
accordance with such terms, conditions, and controls, if any, including the
giving of bond, as the Attorney General, in the discretion of the Attorney
General after consultation with the Secretary of Health and Human Services, may
by regulation prescribe. (h)
Waiver of Subsection (a)(2)(A)(i)(I), (11), (B), (D) and (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)(Il) of
such subsection insofar as it relates to a single offense of simple possession
of 30 grams or less of marijuana if ‑ (1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General that (i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii)
of such subsection or the activities for which the alien is inadmissible
occurred more than 15 years before the date of the alien's application for a
visa, admission, or adjustment of status, (ii) the admission to the United States of such alien would not be
contrary to the national welfare, safety, or security of the United States, and (iii)
the alien has been rehabilitated; or (B) in the case of an immigrant who is the spouse, parent, son, or
daughter of a citizen of the United States or an alien lawfully admitted for
permanent residence if it is established to the satisfaction of the Attorney
General that the alien's denial of admission would result in extreme hardship to
the United States citizen or lawfully resident spouse, parent, son, or daughter
of such alien; and (2) the Attorney General, in his discretion, and pursuant to such
terms, conditions and procedures as he may by regulations prescribe, has
consented to the alien's applying or reapplying for a visa, for admission to the
United States, or adjustment of status. No
waiver shall be provided under this subsection in the case of an alien who has
been convicted of (or who has admitted committing acts that constitute) murder
or criminal acts involving torture, or an attempt or conspiracy to commit murder
or a criminal act involving torture. No waiver shall be granted under this
subsection in the case of an alien who has previously been admitted to the
United States as an alien lawfully admitted for permanent residence if either
since the date of such admission the alien has been convicted of an aggravated
felony or the alien has not lawfully resided continuously in the United States
for a period of not less than 7 years immediately preceding the date of
initiation of proceedings to remove the alien from the United States. No court
shall have jurisdiction to review a decision of the Attorney General to grant or
deny a waiver under this subsection. (i) (1) The
Attorney General may, in the discretion of the Attorney General, waive the
application of clause (i) of subsection (a)(6)(C) in the case of an immigrant
who is the spouse, son or daughter of a United States citizen or of an alien
lawfully admitted for permanent residence, if it is established to the
satisfaction of the Attorney General that the refusal of admission to the United
States of such immigrant alien would result in extreme hardship to the citizen
or lawfully resident spouse or parent of such an alien. (2) No court shall have jurisdiction to review a decision or action
of the Attorney General regarding a waiver under paragraph (1). (j) (1)
The additional requirements referred to in section 101(a)(15)(J) for an alien
who is coming to the United States under a program under which he will receive
graduate medical education or training are as follows: (A) A school of medicine or of one of the other health professions,
which is accredited by a body or bodies approved for the purpose by the
Secretary of Education, has agreed in writing to provide the graduate medical
education or training under the program for which the alien is coming to the
United States or to assume responsibility for arranging for the provision
thereof by an appropriate public or nonprofit private institution or agency,
except that, in the case of such an agreement by a school of medicine, any one
or more of its affiliated hospitals which are to participate in the provision of
the graduate medical education or training must join in the agreement. (B) Before making such agreement, the accredited school has been
satisfied that the alien (i) is a graduate of a school of medicine which is
accredited by a body or bodies approved for the purpose by the secretary of
Education (regardless of whether such school of medicine is in the United
States); or (ii)(1) has passed parts I and II of the National Board of Medical
Examiners Examination (or an equivalent examination as determined by the
Secretary of Health and Human Services), (II) has competency in oral and written
English, (III) will be able to adapt to the educational and cultural environment
in which he will be receiving his education or training, and (IV) has adequate
prior education and training to participate satisfactorily in the program for
which he is coming to the United States. For the purposes of this subparagraph,
an alien who is a graduate of a medical school shall be considered to have
passed parts I and II of the National Board of Medical Examiners examination if
the alien was fully and permanently licensed to practice medicine in a State on
January 9, 1978, and was practicing medicine in a State on that date. (C) The alien has made a commitment to return to the country of his
nationality or last residence upon completion of the education or training for
which he is coming to the United States, and the government of the country of
his nationality or last residence has provided a written assurance, satisfactory
to the Secretary of Health and Human Services, that there is a need in that
country for persons with the skills the alien will acquire in such education or
training. (D) The duration of the alien's participation in the program of
graduate medical education or training for which the alien is coming to the
United States is limited to the time typically required to complete such
program, as determined by the Director of the United States Information Agency
at the time of the alien's admission into the United States, based on criteria
which are established in coordination with the Secretary of Health and Human
Services and which take into consideration the published requirements of the
medical specialty board which administers such education or training program;
except that (i) such duration is further limited to seven years unless the
alien has demonstrated to the satisfaction of the Director that the country to
which the alien will return at the end of such specialty education or training
has an exceptional need for an individual trained in such specialty, and (ii) the alien may, once and not later than two years after the
date the alien is admitted to the United States as an exchange visitor or
acquires exchange visitor status, change the alien's designated program of
graduate medical education or training if the Director approves the change and
if a commitment and written assurance with respect to the alien's new program
have been provided in accordance with subparagraph (C). (E) The alien furnishes the Attorney General each year with an
affidavit (in such form as the Attorney General shall prescribe) that attests
that the alien (i) is in good standing in the program of graduate medical
education or training in which the alien is participating, and (ii) will return
to the country of his nationality or last residence upon completion of the
education or training for which he came to the United States. (2) An alien who is a graduate of a medical school and who is
coming to the United States to perform services as a member of the medical
profession may not be admitted as a nonimmigrant under section 101(a)(15)(H)(i)(b)
unless (A) the alien is coming pursuant to an invitation from a public or
nonprofit private educational or research institution or agency in the United
States to teach or conduct research, or both, at or for such institution or
agency, or (B) (i) the alien has passed the
Federation licensing examination (administered by the Federation of State
Medical Boards of the United States) or an equivalent examination as determined
by the Secretary of Health and Human Services, and (ii)
(I)
has competency in oral and written English or (II) is a graduate of a school of medicine which is accredited by a
body or bodies approved for the purpose by the Secretary of Education
(regardless of whether such school of medicine is in the United States). (3) The Director of the United States Information Agency annually
shall transmit to the Congress a report on aliens have submitted affidavits
described in paragraph (1)(E), and shall include in such report the name and
address of each such alien, the medical education or training program in which
such alien is participating, and the status of such alien in that program. (k)
Any alien, inadmissible from the United States under paragraph (5)(A) or (7)(A)(i)
of subsection (a), who is in possession of an immigrant visa may, if otherwise
admissible, be admitted in the discretion of the Attorney General if the
Attorney General is satisfied that exclusion 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. (1) The requirement of paragraph (7)(B)(i) of subsection (a) of
this section may be waived by the Attorney General, the Secretary of State, and
the Secretary of the Interior, acting jointly, in the case of an alien applying
for admission as a nonimmigrant visitor for business or pleasure and solely for
entry into and stay on Guam for a period not to exceed fifteen days, if the
Attorney General, the Secretary of State, and the Secretary of the Interior,
after consultation with the Governor of Guam, jointly determine that (A)
an adequate arrival and departure control system has been developed on Guam, 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) An alien may not be provided a waiver under this subsection
unless the alien has waived any right ‑ (A) to review or appeal under this Act of an immigration officer's
determination as to the admissibility of the alien at the port of entry into
Guam, or (B) to contest, other than on the basis of an application for
asylum, any action for removal of the alien. (3) If adequate appropriated funds
to carry out this subsection are not otherwise available, the Attorney General
is authorized to accept from the Government of Guam such funds as may be
tendered to cover all or any part of the cost of administration and enforcement
of this subsection. (m) (1)
The qualifications referred to in section 101(a)(15)(H)(i)(a), 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 or Canada; (B) has passed an appropriate examination (recognized in
regulations promulgated in consultation with the Secretary of Health and Human
Services) or has a full and unrestricted license under State law to practice
professional nursing in the State of intended employment; and (C) is fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the nurse to be
employed) governing the place of intended employment to engage in the practice
of professional nursing as a registered nurse immediately upon admission to the
United States and is authorized under such laws to be employed by the facility. (2)
(A) The attestation referred to in section 101(a)(15)(H)(i)(a) is an
attestation as to the following: (i) There would be a substantial disruption through no fault of the
facility in the delivery of health care services of the facility without the
services of such an alien or aliens. (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) Either (I) 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, or (II) the
facility is subject to an approved State plan for the recruitment and retention
of nurses (described in paragraph (3)). (v) There is not a strike or lockout in the course of a labor
dispute, and the employment of such an alien is not intended or designed to
influence an election for a bargaining representative for registered nurses of
the facility. (vi) At the time of the filing of the petition for registered
nurses under section 101(a)(15)(H)(i)(a), 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 registered nurses employed at the facility through
posting in conspicuous locations. A facility is considered not to meet clause (i) (relating to an
attestation of a substantial disruption in delivery of health care services) if
the facility, within the previous year, laid off registered nurses.
Notwithstanding the previous sentence, a facility that lays off a registered
nurse other than a staff nurse meets clause (i) if, in its attestation under
this subparagraph, the facility has attested that it will not replace the nurse
with a nonimmigrant described in section 101(a)(15)(H)(i)(a) (either through
promotion or otherwise) for a period of 1 year after the date of the lay off.195
Nothing in clause (iv) shall be construed as requiring a facility to have taken
significant steps described in such clause before the date of the enactment of
this subsection. 196 In the case of an alien for whom an employer has filed an
attestation under this subparagraph and who is performing services at a worksite
other than the employer's or other than a worksite controlled by the employer,
the Secretary may waive such requirements for the attestation for the worksite
as may be appropriate in order to avoid duplicative attestations, in cases of
temporary, emergency circumstances, with respect to information not within the
knowledge of the attestor, or for other good cause. (B) For purposes of subparagraph (A)(iv)((I), 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 adequate support services to free registered nurses
from administrative and other non‑nursing duties. (v)
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)(I). Nothing herein 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) shall (i)
expire at the end of the 1-year period beginning on the date of its filing with
the Secretary of Labor, and (ii) apply to petitions filed during such 1-year period 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
nonimigrants under section 101(a)(15)(H)(i)(a) 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 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. (iii) Under such process, the Secretary shall provide, within 180
days after the date such a complaint is filed, for a determination as to whether
or not a basis exists to make a finding described in clause (iv). If the
Secretary determines that such a basis exists, the Secretary shall provide for
notice of such determination to the interested parties and an opportunity for a
hearing on the complaint within 60 days of the date of the determination. (iv) If the Secretary of Labor finds, after notice and opportunity
for a hearing, that a facility (for which an attestation is made) has failed to
meet a condition attested to or that there was a misrepresentation of material
fact in the attestation, the Secretary shall notify the Attorney General of such
finding and may, in addition, impose such other administrative remedies
(including civil monetary penalties in an amount not to exceed $1,000 per
violation) as the Secretary determines to be appropriate. Upon receipt of such
notice, the Attorney General shall not approve petitions riled with respect to a
facility during a period of at least 1 year for nurses to be employed by the
facility. (v) In addition to the sanctions provided 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. (3) The Secretary of Labor shall provide for a process under which
a State may submit to the Secretary a plan for the recruitment and retention of
United States citizens and immigrants who are authorized to perform nursing
services as registered nurses in facilities in the State. Such a plan may
include counseling and educating health workers and other individuals concerning
the employment opportunities available to registered nurses. The Secretary shall
provide, on an annual basis in consultation with the Secretary of Health and
Human Services, for the approval or disapproval of such a plan, for purposes of
paragraph (2)(A)(iv)(II). Such a plan may not be considered to be approved with
respect to the facility unless the plan provides for the taking of significant
steps described in paragraph (2)(A)(iv)(II) with respect to registered nurses in
the facility. (4) The period of admission of an alien under section 101(a)(15)(H)(i)(a)
shall be for an initial period of not to exceed 3 years, subject to an extension
for a period or periods, not to exceed a total period of admission of 5 years
(or a total period of admission of 6 years in the case of extraordinary
circumstances, as determined by the Attorney General). (5) For purposes of this subsection and section 101(a)(15)(H)(i)(a),
the term facility includes an employer who employs registered nurses in a home
setting. (n) (l) No alien may be
admitted or provided status as a nonimmigrant described in section 101(a)(15)(H)(i)(b)
in an occupational classification unless the employer has filed with the
Secretary of Labor an application stating the following: (A)
The employer (i) is offering and will offer during the period of authorized
employment to aliens admitted or provided status as a nonimmigrant described in
section 101(a)(15)(H)(i)(b) 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 posted
notice of filing in conspicuous locations at the place of employment. (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. The employer shall make available for public examination, within
one working day after the date on which an application under this paragraph is
filed, at the employer's principal place of business or worksite, a copy of each
such application (and such accompanying documents as are necessary). The
Secretary shall compile, on a current basis, a list (by employer and by
occupational classification) of the applications filed under this subsection.
Such list shall include the wage rate, number of aliens sought, period of
intended employment, and date of need. The Secretary shall make such list
available for public examination in Washington, D.C. The Secretary of Labor
shall review such an application only for completeness and obvious inaccuracies.
Unless the Secretary Finds that the application is incomplete or obviously
inaccurate, the Secretary shall provide the certification described in section
101(a)(15)(H)(i)(b) within 7 days of the date of the filing of the application. (2) (A) The Secretary shall
establish a process for the receipt, investigation, and disposition of
complaints respecting a petitioner's failure to meet a condition specified in an
application submitted under paragraph (1) or a petitioner's misrepresentation of
material facts in such an application. Complaints may be filed by any aggrieved
person or organization (including bargaining representatives). No investigation
or hearing shall be conducted on a complaint concerning such a failure or
misrepresentation unless the complaint was filed not later than 12 months after
the date of the failure or misrepresentation, respectively. The Secretary shall
conduct an investigation under this paragraph if there is reasonable cause to
believe that such a failure or misrepresentation has occurred. (B) Under such process, the Secretary shall provide, within 30 days
after the date such a complaint is filed, for a determination as to whether or
not a reasonable basis exists to make a finding described in subparagraph (C).
If the Secretary determines that such a reasonable basis exists, the Secretary
shall provide for notice of such determination to the interested parties and an
opportunity for a hearing on the complaint, in accordance with section 556 of
title 5, United States Code, within 60 days after the date of the determination.
If such a hearing is requested, the Secretary shall make a finding concerning
the matter by not later than 60 days after the date of the hearing. In the case
of similar complaints respecting the same applicant, the Secretary may
consolidate the hearings under this subparagraph on such complaints. (C) If the Secretary 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 paragraphs (1)(C) or (1)(D), a willful failure to
meet a condition of paragraph (1)(A), or a misrepresentation of material fact in
an application (i) the Secretary shall notify the Attorney General of such finding
and may, in addition, impose such other administrative remedies (including civil
monetary penalties in an amount not to exceed $1,000 per violation) as the
Secretary determines to be appropriate, and (ii) the Attorney General shall not approve petitions filed with
respect to that employer under section 204 or 214(c) during a period of at least
I year for aliens to be employed by the employer. (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. |