8 U.S.C. § 1186b — Conditional permanent resident status

Page 249 TITLE 8—ALIENS AND NATIONALITY § 1186b references, see note set out under section 1551 of this title. § 1186b. Conditional permanent resident status for certain alien entrepreneurs, spouses, and children (a) In general (1) Conditional basis for status An alien investor, alien spouse, and alien child shall be considered, at the time of ob- taining status as an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section. (2) Notice of requirements (A) At time of obtaining permanent residence At the time an alien investor, alien spouse, or alien child obtains permanent resident status on a conditional basis under para- graph (1), the Secretary of Homeland Secu- rity shall provide for notice to such an in- vestor, spouse, or child respecting the provi- sions of this section and the requirements of subsection (c)(1) to have the conditional basis of such status removed. (B) At time of required petition In addition, the Secretary of Homeland Se- curity shall attempt to provide notice to such an investor, spouse, or child, at or about the beginning of the 90-day period de- scribed in subsection (d)(2)(A), of the re- quirements of subsection (c)(1). (C) Effect of failure to provide notice The failure of the Secretary of Homeland Security to provide a notice under this para- graph shall not affect the enforcement of the provisions of this section with respect to such an investor, spouse, or child. (b) Termination of status if finding that quali- fying investment improper (1) In general In the case of an alien investor with perma- nent resident status on a conditional basis under subsection (a), if the Secretary of Home- land Security determines, before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence, that— (A) the investment in the commercial en- terprise was intended solely as a means of evading the immigration laws of the United States, (B) the alien did not invest the requisite capital; or (C) the alien was otherwise not conforming to the requirements of section 1153(b)(5) of this title, then the Secretary of Homeland Security shall so notify the alien involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (and the alien spouse and alien child) involved as of the date of the determination. (2) Hearing in removal proceeding Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a prepon- derance of the evidence, that a condition de- scribed in paragraph (1) is met. (c) Requirements for removal of condition (1) In general Except as provided in paragraph (3)(D), in order for the conditional basis established under subsection (a) for an alien investor, alien spouse, or alien child to be removed— (A) the alien investor shall submit to the Secretary of Homeland Security, during the period described in subsection (d)(2), a peti- tion which requests the removal of such con- ditional basis and which states, under pen- alty of perjury, the facts and information described in subsection (d)(1); (B) in accordance with subsection (d)(3), the alien investor shall appear for a personal interview before an officer or employee of the Department of Homeland Security re- specting the facts and information described in subsection (d)(1); and (C) the Secretary shall have performed a site visit to the relevant corporate office or business location described in section 1153(b)(5)(F)(iv) of this title. (2) Termination of permanent resident status for failure to file petition or have personal interview (A) In general In the case of an alien with permanent resident status on a conditional basis under subsection (a), if— (i) no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or (ii) unless there is good cause shown, the alien investor fails to appear at the inter- view described in paragraph (1)(B) (if re- quired under subsection (d)(3)), the Secretary of Homeland Security shall terminate the permanent resident status of the alien (and the alien’s spouse and chil- dren if it was obtained on a conditional basis under this section or section 1186a of this title) as of the second anniversary of the alien’s lawful admission for permanent resi- dence. (B) Hearing in removal proceeding In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the bur- den of proof shall be on the alien to establish compliance with the conditions of para- graphs (1)(A) and (1)(B). (3) Determination after petition and interview (A) In general If— (i) a petition is filed in accordance with the provisions of paragraph (1)(A), and (ii) the alien investor appears at any interview described in paragraph (1)(B), the Secretary of Homeland Security shall make a determination, within 90 days of the Page 250 TITLE 8—ALIENS AND NATIONALITY § 1186b date of such filing or interview (whichever is later), as to whether the facts and informa- tion described in subsection (d)(1) and al- leged in the petition are true with respect to the qualifying commercial enterprise. (B) Removal or extension of conditional basis (i) In general Except as provided in clause (ii), if the Secretary determines that the facts and information contained in a petition sub- mitted under paragraph (1)(A) are true, in- cluding demonstrating that the alien com- plied with subsection (d)(1)(B)(i), the Sec- retary shall— (I) notify the alien involved of such de- termination; and (II) remove the conditional basis of the alien’s status effective as of the second anniversary of the alien’s lawful admis- sion for permanent residence. (ii) Exception If the petition demonstrates that the facts and information are true and that the alien is in compliance with subsection (d)(1)(B)(ii)— (I) the Secretary, in the Secretary’s discretion, may provide a 1-year exten- sion of the alien’s conditional status; and (II)(aa) if the alien files a petition not later than 30 days after the third anni- versary of the alien’s lawful admission for permanent residence demonstrating that the alien complied with subsection (d)(1)(B)(i), the Secretary shall remove the conditional basis of the alien’s status effective as of such third anniversary; or (bb) if the alien does not file the peti- tion described in item (aa), the condi- tional status shall terminate at the end of such additional year. (C) Termination if adverse determination If the Secretary of Homeland Security de- termines that such facts and information are not true, the Secretary of Homeland Secu- rity shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien in- vestor, alien spouse, or alien child as of the date of the determination. (D) Hearing in removal proceeding Any alien whose permanent resident sta- tus is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to es- tablish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) and alleged in the petition are not true with respect to the qualifying commercial enterprise. (d) Details of petition and interview (1) Contents of petition Each petition under subsection (c)(1)(A) shall contain facts and information dem- onstrating that the alien— (A) invested the requisite capital; (B)(i) created the employment required under section 1153(b)(5)(A)(ii) of this title; or (ii) is actively in the process of creating the employment required under section 1153(b)(5)(A)(ii) of this title and will create such employment before the third anniver- sary of the alien’s lawful admission for per- manent residence, provided that such alien’s capital will remain invested during such time; and (C) is otherwise conforming to the require- ments of section 1153(b)(5) of this title. (2) Period for filing petition (A) Ninety-day period before second anniver- sary (i) In general Except as provided in clause (ii) and sub- paragraph (B), a petition under subsection (c)(1)(A) shall be filed during the 90-day pe- riod immediately preceding the second an- niversary of the alien investor’s lawful ad- mission for permanent residence. (ii) Exception Aliens described in subclauses (I)(bb) and (II) of section 1153(b)(5)(M)(ii) of this title shall file a petition under subsection (c)(1)(A) during the 90-day period before the second anniversary of the subsequent investment. (B) Date petitions for good cause Such a petition may be considered if filed after such date, but only if the alien estab- lishes to the satisfaction of the Secretary of Homeland Security good cause and extenu- ating circumstances for failure to file the petition during the period described in sub- paragraph (A). (C) Filing of petitions during removal In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accord- ance with subparagraph (A), the Attorney General may stay such removal proceedings against an alien pending the filing of the pe- tition under subparagraph (B). (3) Personal interview (A) In general The interview under subsection (c)(1)(B) shall be conducted within 90 days after the date of submitting a petition under sub- section (c)(1)(A) and at a local office of the Department of Homeland Security, des- ignated by the Secretary of Homeland Secu- rity, which is convenient to the parties in- volved. (B) Waiver The Secretary of Homeland Security, in the Secretary’s discretion, may waive the deadline for an interview under subsection (c)(1)(B) or the requirement for such an interview according to criteria developed by U.S. Citizenship and Immigration Services, in consultation with its Fraud Detection and National Security Directorate and U.S. Im- migration and Customs Enforcement, pro- Page 251 TITLE 8—ALIENS AND NATIONALITY § 1186b vided that such criteria do not include a re- duction of case processing times or the allo- cation of adjudicatory resources. A waiver may not be granted under this subparagraph if the alien to be interviewed— (i) invested in a regional center, new commercial enterprise, or job-creating en- tity that was sanctioned under section 1153(b)(5) of this title; or (ii) is in a class of aliens determined by the Secretary to be threats to public safe- ty or national security. (e) Treatment of period for purposes of natu- ralization For purposes of subchapter III, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admit- ted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence. (f) Definitions In this section: (1) The term ‘‘alien investor’’ means an alien who obtains the status of an alien lawfully ad- mitted for permanent residence (whether on a conditional basis or otherwise) under section 1153(b)(5) of this title. (2) The term ‘‘alien spouse’’ and the term ‘‘alien child’’ mean an alien who obtains the status of an alien lawfully admitted for per- manent residence (whether on a conditional basis or otherwise) by virtue of being the spouse or child, respectively, of an alien inves- tor. (3) The term ‘‘commercial enterprise’’ in- cludes any entity formed for the purpose of doing for-profit business. (June 27, 1952, ch. 477, title II, ch. 2, § 216A, as added Pub. L. 101–649, title I, § 121(b)(1), Nov. 29, 1990, 104 Stat. 4990; amended Pub. L. 102–232, title III, § 302(b)(3), Dec. 12, 1991, 105 Stat. 1743; Pub. L. 104–208, div. C, title III, § 308(e)(8), Sept. 30, 1996, 110 Stat. 3009–620; Pub. L. 107–273, div. C, title I, § 11036(b), Nov. 2, 2002, 116 Stat. 1847; Pub. L. 117–103, div. BB, § 104(a), Mar. 15, 2022, 136 Stat. 1100.) Editorial Notes AMENDMENTS 2022—Pub. L. 117–103, § 104(a)(2), substituted ‘‘inves- tor’’ for ‘‘entrepreneur’’ wherever appearing. Pub. L. 117–103, § 104(a)(1), substituted ‘‘Secretary of Homeland Security’’ for ‘‘Attorney General’’ wherever appearing, except in subsec. (d)(2)(C). Subsec. (a)(1). Pub. L. 117–103, § 104(a)(3), amended par. (1) generally. Prior to amendment, text read as follows: ‘‘Notwithstanding any other provision of this chapter, an alien investor (as defined in subsection (f)(1)), alien spouse, and alien child (as defined in subsection (f)(2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis sub- ject to the provisions of this section.’’ Subsec. (b). Pub. L. 117–103, § 104(a)(4)(A), substituted ‘‘investment’’ for ‘‘entrepreneurship’’ in heading. Subsec. (b)(1)(B). Pub. L. 117–103, § 104(a)(4)(B), amend- ed subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘(B)(i) the alien did not invest, or was not actively in the process of investing, the requisite capital; or ‘‘(ii) the alien was not sustaining the actions de- scribed in clause (i) throughout the period of the alien’s residence in the United States; or’’. Subsec. (c). Pub. L. 117–103, § 104(a)(5)(A), struck out ‘‘of timely petition and interview’’ after ‘‘Require- ments’’ in heading. Subsec. (c)(1). Pub. L. 117–103, § 104(a)(5)(B)(i), sub- stituted ‘‘Except as provided in paragraph (3)(D), in order’’ for ‘‘In order’’ in introductory provisions. Subsec. (c)(1)(A). Pub. L. 117–103, § 104(a)(5)(B)(ii), sub- stituted ‘‘shall submit’’ for ‘‘must submit’’ and semi- colon at end for ‘‘, and’’. Subsec. (c)(1)(B). Pub. L. 117–103, § 104(a)(5)(B)(iii), substituted ‘‘shall appear’’ for ‘‘must appear’’, ‘‘Depart- ment of Homeland Security’’ for ‘‘Service’’, and ‘‘; and’’ for period at end. Subsec. (c)(1)(C). Pub. L. 117–103, § 104(a)(5)(B)(iv), added subpar. (C). Subsec. (c)(3)(A). Pub. L. 117–103, § 104(a)(5)(C)(i), struck out ‘‘the’’ before ‘‘such filing’’ in concluding provisions. Subsec. (c)(3)(B). Pub. L. 117–103, § 104(a)(5)(C)(ii), amended subpar. (B) generally. Prior to amendment, text read as follows: ‘‘If the Secretary of Homeland Se- curity determines that such facts and information are true, the Secretary of Homeland Security shall so no- tify the alien involved and shall remove the conditional basis of the alien’s status effective as of the second an- niversary of the alien’s lawful admission for permanent residence.’’ Subsec. (d)(1)(A). Pub. L. 117–103, § 104(a)(6)(A)(i), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: ‘‘(A)(i) invested, or is actively in the process of in- vesting, the requisite capital; and ‘‘(ii) sustained the actions described in clause (i) throughout the period of the alien’s residence in the United States; and’’. Subsec. (d)(1)(B), (C). Pub. L. 117–103, § 104(a)(6)(A)(ii), (iii), added subpar. (B) and redesignated former subpar. (B) as (C). Subsec. (d)(2)(A). Pub. L. 117–103, § 104(a)(6)(B), amend- ed subpar. (A) generally. Prior to amendment, text read as follows: ‘‘Except as provided in subparagraph (B), the petition under subsection (c)(1)(A) must be filed during the 90-day period before the second anniversary of the alien’s lawful admission for permanent resi- dence.’’ Subsec. (d)(3). Pub. L. 117–103, § 104(a)(6)(C), des- ignated existing provisions as subpar. (A), inserted heading, substituted ‘‘Department of Homeland Secu- rity’’ for ‘‘Service’’, struck out ‘‘The Secretary of Homeland Security, in the Secretary of Homeland Se- curity’s discretion, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate.’’ after ‘‘parties in- volved.’’, and added subpar. (B). Subsec. (f)(3). Pub. L. 117–103, § 104(a)(7), substituted ‘‘any entity formed for the purpose of doing for-profit business’’ for ‘‘a limited partnership’’. 2002—Subsec. (b)(1)(A). Pub. L. 107–273, § 11036(b)(1)(A), substituted ‘‘investment in’’ for ‘‘establishment of’’. Subsec. (b)(1)(B). Pub. L. 107–273, § 11036(b)(1)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘(B)(i) a commercial enterprise was not established by the alien, ‘‘(ii) the alien did not invest or was not actively in the process of investing the requisite capital; or ‘‘(iii) the alien was not sustaining the actions de- scribed in clause (i) or (ii) throughout the period of the alien’s residence in the United States, or’’. Subsec. (d)(1). Pub. L. 107–273, § 11036(b)(2), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: ‘‘Each peti- tion under subsection (c)(1)(A) of this section shall con- tain facts and information demonstrating that— ‘‘(A) a commercial enterprise was established by the alien; Page 252 TITLE 8—ALIENS AND NATIONALITY § 1186b ‘‘(B) the alien invested or was actively in the proc- ess of investing the requisite capital; and ‘‘(C) the alien sustained the actions described in subparagraphs (A) and (B) throughout the period of the alien’s residence in the United States.’’ Subsec. (f)(3). Pub. L. 107–273, § 11036(b)(3), added par. (3). 1996—Subsec. (b)(2). Pub. L. 104–208 substituted ‘‘re- moval’’ for ‘‘deportation’’ in heading and ‘‘remove’’ for ‘‘deport’’ in text. Subsec. (c)(2)(B). Pub. L. 104–208 substituted ‘‘re- moval’’ for ‘‘deportation’’ in heading and text. Subsec. (c)(3)(D). Pub. L. 104–208 substituted ‘‘re- moval’’ for ‘‘deportation’’ in heading and ‘‘remove’’ for ‘‘deport’’ in text. Subsec. (d)(2)(C). Pub. L. 104–208 substituted ‘‘re- moval’’ for ‘‘deportation’’ wherever appearing in head- ing and text. 1991—Subsec. (c)(2)(A). Pub. L. 102–232, § 302(b)(3)(A), in closing provisions inserted parenthetical provision relating to alien’s spouse and children. Subsecs. (c)(3)(B), (d)(2)(A). Pub. L. 102–232, § 302(b)(3)(B), struck out ‘‘obtaining the status of’’ be- fore ‘‘lawful admission’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117–103, div. BB, § 104(b), Mar. 15, 2022, 136 Stat. 1102, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Mar. 15, 2022]. ‘‘(2) EXCEPTIONS.— ‘‘(A) SITE VISITS.—The amendment made by sub- section (a)(5)(B)(iv) shall take effect on the date that is 2 years after the date of the enactment of this Act. ‘‘(B) PETITION BENEFICIARIES.—The amendments made by subsection (a) shall not apply to the bene- ficiary of a petition that is filed under section 216A of the Immigration and Nationality Act (8 U.S.C. 1186b) if the underlying petition was filed under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)) before the date of the enactment of this Act.’’ EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–273 effective Nov. 2, 2002 and applicable to aliens having certain petitions pend- ing under this section or section 1154 of this title on or after Nov. 2, 2002, see section 11036(c) of Pub. L. 107–273, set out as a note under section 1153 of this title. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title. EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title. EFFECTIVE DATE Section effective Oct. 1, 1991, and applicable begin- ning with fiscal year 1992, see section 161(a) of Pub. L. 101–649, set out as an Effective Date of 1990 Amendment note under section 1101 of this title. ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title. IMMIGRATION BENEFITS Pub. L. 107–273, div. C, title I, §§ 11031–11034, Nov. 2, 2002, 116 Stat. 1837–1846, provided that: ‘‘SEC. 11031. REMOVAL OF CONDITIONAL BASIS OF PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHIL- DREN. ‘‘(a) IN GENERAL.—In lieu of the provisions of section 216A(c)(3) of the Immigration and Nationality Act (8 U.S.C. 1186b(c)(3)), subsection (c) shall apply in the case of an eligible alien described in subsection (b)(1). ‘‘(b) ELIGIBLE ALIENS DESCRIBED.— ‘‘(1) IN GENERAL.—An alien is an eligible alien de- scribed in this subsection if the alien— ‘‘(A) filed, under section 204(a)(1)(H) of the Immi- gration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any predecessor provision), a petition to accord the alien a status under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)) that was approved by the Attor- ney General after January 1, 1995, and before Au- gust 31, 1998; ‘‘(B) pursuant to such approval, obtained the sta- tus of an alien entrepreneur with permanent resi- dent status on a conditional basis described in sec- tion 216A of such Act (8 U.S.C. 1186b); and ‘‘(C) timely filed, in accordance with section 216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) and before the date of the enactment of this Act [Nov. 2, 2002], a petition requesting the removal of such conditional basis. ‘‘(2) REOPENING PETITIONS PREVIOUSLY DENIED.— ‘‘(A) IN GENERAL.—In the case of a petition de- scribed in paragraph (1)(C) that was denied under section 216A(c)(3)(C) of the Immigration and Na- tionality Act (8 U.S.C. 1186b(c)(3)(C)) before the date of the enactment of this Act, upon a motion to reopen such petition filed by the eligible alien not later than 60 days after such date, the Attorney General shall make determinations on such peti- tion pursuant to subsection (c). ‘‘(B) PETITIONERS ABROAD.—In the case of such an eligible alien who is no longer physically present in the United States, the Attorney General shall es- tablish a process under which the alien may be pa- roled into the United States if necessary in order to obtain the determinations under subsection (c), un- less the Attorney General finds that— ‘‘(i) the alien is inadmissible or deportable on any ground; or ‘‘(ii) the petition described in paragraph (1)(C) was denied on the ground that it contains a mate- rial misrepresentation in the facts and informa- tion described in section 216A(d)(1) of the Immi- gration and Nationality Act (8 U.S.C. 1186b(d)(1)) and alleged in the petition with respect to a com- mercial enterprise. ‘‘(C) DEPORTATION OR REMOVAL PROCEEDINGS.—In the case of such an eligible alien who was placed in deportation or removal proceedings by reason of the denial of the petition described in paragraph (1)(C), a motion to reopen filed under subparagraph (A) shall be treated as a motion to reopen such pro- ceedings. The Attorney General shall grant such motion notwithstanding any time and number limi- tations imposed by law on motions to reopen such proceedings, except that the scope of any pro- ceeding reopened on this basis shall be limited to whether any order of deportation or removal should be vacated, and the alien granted the status of an alien lawfully admitted for permanent residence (unconditionally or on a conditional basis), by rea- son of the determinations made under subsection (c). An alien who is inadmissible or deportable on any ground shall not be granted such status, except that this prohibition shall not apply to an alien who has been paroled into the United States under subparagraph (B). ‘‘(c) DETERMINATIONS ON PETITIONS.— ‘‘(1) INITIAL DETERMINATION.— Page 253 TITLE 8—ALIENS AND NATIONALITY § 1186b ‘‘(A) IN GENERAL.—With respect to each eligible alien described in subsection (b)(1), the Attorney General shall make a determination, not later than 180 days after the date of the enactment of this Act [Nov. 2, 2002], whether— ‘‘(i) the petition described in subsection (b)(1)(C) contains any material misrepresentation in the facts and information described in section 216A(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)) and alleged in the petition with respect to a commercial enterprise (regard- less of whether such enterprise is a limited part- nership and regardless of whether the alien en- tered the enterprise after its formation); ‘‘(ii) subject to subparagraphs (B) and (C), such enterprise created full-time jobs for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immi- grants lawfully authorized to be employed in the United States (other than the eligible alien and the alien’s spouse, sons, or daughters), and those jobs exist or existed on any of the dates described in subparagraph (D); and ‘‘(iii) on any of the dates described in subpara- graph (D), the alien is in substantial compliance with the capital investment requirement de- scribed in section 216A(d)(1)(B) of the Immigra- tion and Nationality Act (8 U.S.C. 1186b(d)(1)(B)). ‘‘(B) INVESTMENT UNDER PILOT IMMIGRATION PRO- GRAM.—For purposes of subparagraph (A)(ii), an in- vestment that satisfies the requirements of section 610(c) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Ap- propriations Act, 1993 (8 U.S.C. 1153 note), as in ef- fect on the date of the enactment of this Act [Nov. 2, 2002], shall be deemed to satisfy the requirements of such subparagraph. ‘‘(C) EXCEPTION FOR TROUBLED BUSINESSES.—In the case of an eligible alien who has made a capital in- vestment in a troubled business (as defined in 8 CFR 204.6(e), as in effect on the date of the enact- ment of this Act), in lieu of the determination under subparagraph (A)(ii), the Attorney General shall determine whether the number of employees of the business, as measured on any of the dates de- scribed in subparagraph (D), is at no less than the pre-investment level. ‘‘(D) DATES.—The dates described in this subpara- graph are the following: ‘‘(i) The date on which the petition described in subsection (b)(1)(C) is filed. ‘‘(ii) 6 months after the date described in clause (i). ‘‘(iii) The date on which the determination under subparagraph (A) or (C) is made. ‘‘(E) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DETERMINATION.—If the Attorney General renders an affirmative determination with respect to clauses (ii) and (iii) of subparagraph (A), and if the Attorney General renders a negative determination with respect to clause (i) of such subparagraph, the Attorney General shall so notify the alien involved and shall remove the conditional basis of the alien’s status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immi- gration and Nationality Act (8 U.S.C. 1186b)) effec- tive as of the second anniversary of the alien’s law- ful admission for permanent residence. ‘‘(F) REQUIREMENTS RELATING TO ADVERSE DETER- MINATIONS.— ‘‘(i) NOTICE.—If the Attorney General renders an adverse determination with respect to clause (i), (ii), or (iii) of subparagraph (A), the Attorney General shall so notify the alien involved. The no- tice shall be in writing and shall state the factual basis for any adverse determination. The Attor- ney General shall provide the alien with an oppor- tunity to submit evidence to rebut any adverse determination. If the Attorney General reverses all adverse determinations pursuant to such re- buttal, the Attorney General shall so notify the alien involved and shall remove the conditional basis of the alien’s status (and that of the alien’s spouse and children if it was obtained under sec- tion 216A of the Immigration and Nationality Act (8 U.S.C. 1186b)) effective as of the second anniver- sary of the alien’s lawful admission for perma- nent residence. ‘‘(ii) CONTINUATION OF CONDITIONAL BASIS IF CER- TAIN ADVERSE DETERMINATIONS.—If the Attorney General renders an adverse determination with respect to clause (ii) or (iii) of subparagraph (A), and the eligible alien’s rebuttal does not cause the Attorney General to reverse such determina- tion, the Attorney General shall continue the conditional basis of the alien’s permanent resi- dent status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immigration and Nationality Act (8 U.S.C. 1186b)) for a 2-year period. ‘‘(iii) TERMINATION IF ADVERSE DETERMINA- TION.—If the Attorney General renders an adverse determination with respect to subparagraph (A)(i), and the eligible alien’s rebuttal does not cause the Attorney General to reverse such deter- mination, the Attorney General shall so notify the alien involved and, subject to subsection (d), shall terminate the permanent resident status of the alien (and that of the alien’s spouse and chil- dren if it was obtained on a conditional basis under section 216A of the Immigration and Na- tionality Act (8 U.S.C. 1186b)). ‘‘(iv) ADMINISTRATIVE AND JUDICIAL REVIEW.—An alien may seek administrative review of an ad- verse determination made under subparagraph (A) by filing a petition for such review with the Board of Immigration Appeals. If the Board of Im- migration Appeals denies the petition, the alien may seek judicial review. The procedures for judi- cial review under this clause shall be the same as the procedures for judicial review of a final order of removal under section 242(a)(1) of the Immigra- tion and Nationality Act (8 U.S.C. 1252(a)(1)). Dur- ing the period in which an administrative or judi- cial appeal under this clause is pending, the At- torney General shall continue the conditional basis of the alien’s permanent resident status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immigra- tion and Nationality Act (8 U.S.C. 1186b)). ‘‘(2) SECOND DETERMINATION.— ‘‘(A) AUTHORIZATION TO CONSIDER INVESTMENTS IN OTHER COMMERCIAL ENTERPRISES.—In determining under this paragraph whether to remove a condi- tional basis continued under paragraph (1)(F)(ii) with respect to an alien, the Attorney General shall consider any capital investment made by the alien in a commercial enterprise (regardless of whether such enterprise is a limited partnership and regard- less of whether the alien entered the enterprise after its formation), in the United States, regard- less of whether that investment was made before or after the determinations under paragraph (1) and regardless of whether the commercial enterprise is the same as that considered in the determinations under such paragraph, if facts and information with respect to the investment and the enterprise are in- cluded in the petition submitted under subpara- graph (B). ‘‘(B) PETITION.—In order for a conditional basis continued under paragraph (1)(F)(ii) for an eligible alien (and the alien’s spouse and children) to be re- moved, the alien must submit to the Attorney Gen- eral, during the period described in subparagraph (C), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in sub- paragraphs (A) and (B) of section 216A(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)) with respect to any commercial enter- Page 254 TITLE 8—ALIENS AND NATIONALITY § 1186b prise (regardless of whether such enterprise is a limited partnership and regardless of whether the alien entered the enterprise after its formation) which the alien desires to have considered under this paragraph, regardless of whether such enter- prise was created before or after the determinations made under paragraph (1). ‘‘(C) PERIOD FOR FILING PETITION.— ‘‘(i) 90-DAY PERIOD BEFORE SECOND ANNIVER- SARY.—Except as provided in clause (ii), the peti- tion under subparagraph (B) must be filed during the 90-day period before the second anniversary of the continuation, under paragraph (1)(F)(ii), of the conditional basis of the alien’s lawful admis- sion for permanent residence. ‘‘(ii) DATE PETITIONS FOR GOOD CAUSE.—Such a petition may be considered if filed after such date, but only if the alien establishes to the satis- faction of the Attorney General good cause and extenuating circumstances for failure to file the petition during the period described in clause (i). ‘‘(D) TERMINATION OF PERMANENT RESIDENT STATUS FOR FAILURE TO FILE PETITION.— ‘‘(i) IN GENERAL.—In the case of an alien with permanent resident status on a conditional basis under paragraph (1)(F)(ii), if no petition is filed with respect to the alien in accordance with sub- paragraph (B), the Attorney General shall termi- nate the permanent resident status of the alien (and the alien’s spouse and children if it was ob- tained on a conditional basis under section 216A of the Immigration and Nationality Act (8 U.S.C. 1186b)) as of the second anniversary of the con- tinuation, under paragraph (1)(F)(ii), of the condi- tional basis of the alien’s lawful admission for permanent residence. ‘‘(ii) HEARING IN REMOVAL PROCEEDING.—In any removal proceeding with respect to an alien whose permanent resident status is terminated under clause (i), the burden of proof shall be on the alien to establish compliance with subpara- graph (B). ‘‘(E) DETERMINATIONS AFTER PETITION.—If a peti- tion is filed by an eligible alien in accordance with subparagraph (B), the Attorney General shall make a determination, within 90 days of the date of such filing, whether— ‘‘(i) the petition contains any material mis- representation in the facts and information al- leged in the petition with respect to the commer- cial enterprises included in such petition; ‘‘(ii) all such enterprises, considered together, created full-time jobs for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants law- fully authorized to be employed in the United States (other than the eligible alien and the alien’s spouse, sons, or daughters), and those jobs exist on the date on which the determination is made, except that— ‘‘(I) this clause shall apply only if the Attor- ney General made an adverse determination with respect to the eligible alien under para- graph (1)(A)(ii); ‘‘(II) the provisions of subparagraphs (B) and (C) of paragraph (1) shall apply to a determina- tion under this clause in the same manner as they apply to a determination under paragraph (1)(A)(ii); and ‘‘(III) if the Attorney General determined under paragraph (1)(A)(ii) that any jobs satis- fying the requirement of such paragraph were created, the number of those jobs shall be sub- tracted from the number of jobs otherwise need- ed to satisfy the requirement of this clause; and ‘‘(iii) considering all such enterprises together, on the date on which the determination is made, the eligible alien is in substantial compliance with the capital investment requirement de- scribed in section 216A(d)(1)(B) of the Immigra- tion and Nationality Act (8 U.S.C. 1186b(d)(1)(B)), except that— ‘‘(I) this clause shall apply only if the Attor- ney General made an adverse determination with respect to the eligible alien under para- graph (1)(A)(iii); and ‘‘(II) if the Attorney General determined under paragraph (1)(A)(iii) that any capital amount was invested that could be credited to- wards compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)(B)), such amount shall be sub- tracted from the amount of capital otherwise needed to satisfy the requirement of this clause. ‘‘(F) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DETERMINATION.—If the Attorney General renders an affirmative determination with respect to clauses (ii) and (iii) of subparagraph (E), and if the Attorney General renders a negative determination with respect to clause (i) of such subparagraph, the Attorney General shall so notify the alien involved and shall remove the conditional basis of the alien’s status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immi- gration and Nationality Act (8 U.S.C. 1186b)) effec- tive as of the second anniversary of the continu- ation, under paragraph (1)(F)(ii), of the conditional basis of the alien’s lawful admission for permanent residence. ‘‘(G) REQUIREMENTS RELATING TO ADVERSE DETER- MINATIONS.— ‘‘(i) NOTICE.—If the Attorney General renders an adverse determination under subparagraph (E), the Attorney General shall so notify the alien in- volved. The notice shall be in writing and shall state the factual basis for any adverse determina- tion. The Attorney General shall provide the alien with an opportunity to submit evidence to rebut any adverse determination. If the Attorney General reverses all adverse determinations pur- suant to such rebuttal, the Attorney General shall so notify the alien involved and shall re- move the conditional basis of the alien’s status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immigra- tion and Nationality Act (8 U.S.C. 1186b)) effec- tive as of the second anniversary of the continu- ation, under paragraph (1)(F)(ii), of the condi- tional basis of the alien’s lawful admission for permanent residence. ‘‘(ii) TERMINATION IF ADVERSE DETERMINATION.— If the eligible alien’s rebuttal does not cause the Attorney General to reverse each adverse deter- mination under subparagraph (E), the Attorney General shall so notify the alien involved and, subject to subsection (d), shall terminate the per- manent resident status of the alien (and that of the alien’s spouse and children if it was obtained on a conditional basis under section 216A of the Immigration and Nationality Act (8 U.S.C. 1186b)). ‘‘(d) HEARING IN REMOVAL PROCEEDING.—Any alien whose permanent resident status is terminated under paragraph (1)(F)(iii) or (2)(G)(ii) of subsection (c) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General. ‘‘(e) CLARIFICATION WITH RESPECT TO CHILDREN.—In the case of an alien who obtained the status of an alien lawfully admitted for permanent residence on a condi- tional basis before the date of the enactment of this Act [Nov. 2, 2002] by virtue of being the child of an eli- gible alien described in subsection (b)(1), the alien shall be considered to be a child for purposes of this section regardless of any change in age or marital status after obtaining such status. ‘‘(f) DEFINITION OF FULL-TIME.—For purposes of this section, the term ‘full-time’ means a position that re- quires at least 35 hours of service per week at any time, regardless of who fills the position. Page 255 TITLE 8—ALIENS AND NATIONALITY § 1187 ‘‘SEC. 11032. CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTRE- PRENEURS, SPOUSES, AND CHILDREN. ‘‘(a) IN GENERAL.—With respect to each eligible alien described in subsection (b), the Attorney General or the Secretary of State shall approve the application de- scribed in subsection (b)(2) and grant the alien (and any spouse or child of the alien, if the spouse or child is eli- gible to receive a visa under section 203(d) of the Immi- gration and Nationality Act (8 U.S.C. 1153(d))) the sta- tus of an alien lawfully admitted for permanent resi- dence on a conditional basis under section 216A of such Act (8 U.S.C. 1186b). Such application shall be approved not later than 180 days after the date of the enactment of this Act [Nov. 2, 2002]. ‘‘(b) ELIGIBLE ALIENS DESCRIBED.—An alien is an eli- gible alien described in this subsection if the alien— ‘‘(1) filed, under section 204(a)(1)(H) of the Immigra- tion and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any predecessor provision), a petition to accord the alien a status under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)) that was approved by the Attorney General after January 1, 1995, and before August 31, 1998; ‘‘(2) pursuant to such approval, timely filed before the date of the enactment of this Act [Nov. 2, 2002] an application for adjustment of status under section 245 of such Act (8 U.S.C. 1255) or an application for an im- migrant visa under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)); and ‘‘(3) is not inadmissible or deportable on any ground. ‘‘(c) TREATMENT OF CERTAIN APPLICATIONS.— ‘‘(1) REVOCATION OF APPROVAL OF PETITIONS.—If the Attorney General revoked the approval of a petition described in subsection (b)(1), such revocation shall be disregarded for purposes of this section if it was based on a determination that the alien failed to sat- isfy section 203(b)(5)(A)(ii) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)(A)(ii)). ‘‘(2) APPLICATIONS NO LONGER PENDING.— ‘‘(A) IN GENERAL.—If an application described in subsection (b)(2) is not pending on the date of the enactment of this Act [Nov. 2, 2002], the Attorney General shall disregard the circumstances leading to such lack of pendency and treat it as reopened, if such lack of pendency is due to a determination that the alien— ‘‘(i) failed to satisfy section 203(b)(5)(A)(ii) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)(A)(ii)); or ‘‘(ii) departed the United States without ad- vance parole. ‘‘(B) APPLICANTS ABROAD.—In the case of an eligi- ble alien who filed an application for adjustment of status described in subsection (b)(2), but who is no longer physically present in the United States, the Attorney General shall establish a process under which the alien may be paroled into the United States if necessary in order to obtain adjustment of status under this section. ‘‘(d) RECORDATION OF DATE; REDUCTION OF NUMBERS.— Upon the approval of an application under subsection (a), the Attorney General shall record the alien’s lawful admission for permanent residence on a conditional basis as of the date of such approval and the Secretary of State shall reduce by one the number of visas au- thorized to be issued under sections 201(d) and 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1151(d) and 1153(b)(5)) for the fiscal year then current. ‘‘(e) REMOVAL OF CONDITIONAL BASIS.— ‘‘(1) PETITION.—In order for a conditional basis es- tablished under this section for an alien (and the alien’s spouse and children) to be removed, the alien must satisfy the requirements of section 216A(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1186b(c)(1)), including the submission of a petition in accordance with subparagraph (A) of such section. Such petition may include the facts and information described in subparagraphs (A) and (B) of section 216A(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)) with respect to any commercial en- terprise (regardless of whether such enterprise is a limited partnership and regardless of whether the alien entered the enterprise after its formation) in the United States in which the alien has made a cap- ital investment at any time. ‘‘(2) DETERMINATION.—In carrying out section 216A(c)(3) of the Immigration and Nationality Act (8 U.S.C. 1186b(c)(3)) with respect to an alien described in paragraph (1), the Attorney General, in lieu of the determination described in such section 216A(c)(3), shall make a determination, within 90 days of the date of such filing, whether— ‘‘(A) the petition described in paragraph (1) con- tains any material misrepresentation in the facts and information alleged in the petition with respect to the commercial enterprises included in the peti- tion; ‘‘(B) subject to subparagraphs (B) and (C) of sec- tion 11031(c)(1), all such enterprises, considered to- gether, created full-time jobs for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants law- fully authorized to be employed in the United States (other than the alien and the alien’s spouse, sons, or daughters), and those jobs exist or existed on either of the dates described in paragraph (3); and ‘‘(C) considering the alien’s investments in such enterprises on either of the dates described in para- graph (3), or on both such dates, the alien is or was in substantial compliance with the capital invest- ment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)(B)). ‘‘(3) DATES.—The dates described in this paragraph are the following: ‘‘(A) The date on which the application described in subsection (b)(2) was filed. ‘‘(B) The date on which the determination under paragraph (2) is made. ‘‘(f) CLARIFICATION WITH RESPECT TO CHILDREN.—In the case of an alien who was a child on the date on which the application described in subsection (b)(2) was filed, the alien shall be considered to be a child for pur- poses of this section regardless of any change in age or marital status after such date. ‘‘SEC. 11033. REGULATIONS. ‘‘The Immigration and Naturalization Service shall promulgate regulations to implement this chapter [chapter 1 (§§ 11031–11034) of subtitle B of title I of div. C of Pub. L. 107–273, enacting this note] not later than 120 days after the date of enactment of this Act [Nov. 2, 2002]. Until such regulations are promulgated, the Attorney General shall not deny a petition filed or pending under section 216A(c)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1186b(c)(1)(A)) that re- lates to an eligible alien described in section 11031, or on an application filed or pending under section 245 of such Act (8 U.S.C. 1255) that relates to an eligible alien described in section 11032. Until such regulations are promulgated, the Attorney General shall not initiate or proceed with removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) that relate to an eligible alien described in section 11031 or 11032. ‘‘SEC. 11034. DEFINITIONS. ‘‘Except as otherwise provided, the terms used in this chapter shall have the meaning given such terms in section 101(b) of the Immigration and Nationality Act (8 U.S.C. 1101(b)).’’ § 1187. Visa waiver program for certain visitors (a) Establishment of program The Secretary of Homeland Security and the Secretary of State are authorized to establish a