Aliens and Nationality - 8 USC Section 1186b

01/03/05

Sec. 1186b. Conditional permanent resident status for certain alien
entrepreneurs, spouses, and children

(a) In general
(1) Conditional basis for status
Notwithstanding any other provision of this chapter, an alien
entrepreneur (as defined in subsection (f)(1) of this section),
alien spouse, and alien child (as defined in subsection (f)(2) of
this section) shall be considered, at the time of obtaining the
status of an alien lawfully admitted for permanent residence, to
have obtained such status on a conditional basis subject to the
provisions of this section.
(2) Notice of requirements
(A) At time of obtaining permanent residence
At the time an alien entrepreneur, alien spouse, or alien
child obtains permanent resident status on a conditional basis
under paragraph (1), the Attorney General shall provide for
notice to such an entrepreneur, spouse, or child respecting the
provisions of this section and the requirements of subsection
(c)(1) of this section to have the conditional basis of such
status removed.
(B) At time of required petition
In addition, the Attorney General shall attempt to provide
notice to such an entrepreneur, spouse, or child, at or about
the beginning of the 90-day period described in subsection
(d)(2)(A) of this section, of the requirements of subsection
(c)(1) of this section.
(C) Effect of failure to provide notice
The failure of the Attorney General to provide a notice under
this paragraph shall not affect the enforcement of the
provisions of this section with respect to such an
entrepreneur, spouse, or child.
(b) Termination of status if finding that qualifying
entrepreneurship improper
(1) In general
In the case of an alien entrepreneur with permanent resident
status on a conditional basis under subsection (a) of this
section, if the Attorney General determines, before the second
anniversary of the alien's obtaining the status of lawful
admission for permanent residence, that -
(A) the investment in the commercial enterprise was intended
solely as a means of evading the immigration laws of the United
States,
(B)(i) the alien did not invest, or was not actively in the
process of investing, the requisite capital; or
(ii) the alien was not sustaining the actions described in
clause (i) throughout the period of the alien's residence in
the United States; or
(C) the alien was otherwise not conforming to the
requirements of section 1153(b)(5) of this title,
then the Attorney General shall so notify the alien involved and,
subject to paragraph (2), shall terminate the permanent resident
status of the alien (and the alien spouse and alien child)
involved as of the date of the determination.
(2) Hearing in removal proceeding
Any alien whose permanent resident status is terminated under
paragraph (1) may request a review of such determination in a
proceeding to remove the alien. In such proceeding, the burden of
proof shall be on the Attorney General to establish, by a
preponderance of the evidence, that a condition described in
paragraph (1) is met.
(c) Requirements of timely petition and interview for removal of
condition
(1) In general
In order for the conditional basis established under subsection
(a) of this section for an alien entrepreneur, alien spouse, or
alien child to be removed -
(A) the alien entrepreneur must submit to the Attorney
General, during the period described in subsection (d)(2) of
this section, a petition which requests the removal of such
conditional basis and which states, under penalty of perjury,
the facts and information described in subsection (d)(1) of
this section, and
(B) in accordance with subsection (d)(3) of this section, the
alien entrepreneur must appear for a personal interview before
an officer or employee of the Service respecting the facts and
information described in subsection (d)(1) of this section.
(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) of this section, if -
(i) no petition is filed with respect to the alien in
accordance with the provisions of paragraph (1)(A), or
(ii) unless there is good cause shown, the alien
entrepreneur fails to appear at the interview described in
paragraph (1)(B) (if required under subsection (d)(3) of this
section),
the Attorney General shall terminate the permanent resident
status of the alien (and the alien's spouse and children if it
was obtained on a conditional basis under this section or
section 1186a of this title) as of the second anniversary of
the alien's lawful admission for permanent residence.
(B) Hearing in removal proceeding
In any removal proceeding with respect to an alien whose
permanent resident status is terminated under subparagraph (A),
the burden of proof shall be on the alien to establish
compliance with the conditions of paragraphs (1)(A) and (1)(B).
(3) Determination after petition and interview
(A) In general
If -
(i) a petition is filed in accordance with the provisions
of paragraph (1)(A), and
(ii) the alien entrepreneur appears at any interview
described in paragraph (1)(B),
the Attorney General shall make a determination, within 90 days
of the date of the such filing (!1) or interview (whichever is
later), as to whether the facts and information described in
subsection (d)(1) of this section and alleged in the petition
are true with respect to the qualifying commercial enterprise.
(B) Removal of conditional basis if favorable determination
If the Attorney General determines that such facts and
information are true, the Attorney General shall so notify the
alien involved and shall remove the conditional basis of the
alien's status effective as of the second anniversary of the
alien's lawful admission for permanent residence.
(C) Termination if adverse determination
If the Attorney General determines that such facts and
information are not true, the Attorney General shall so notify
the alien involved and, subject to subparagraph (D), shall
terminate the permanent resident status of an alien
entrepreneur, alien spouse, or alien child as of the date of
the determination.
(D) Hearing in removal proceeding
Any alien whose permanent resident status is terminated under
subparagraph (C) may request a review of such determination in
a proceeding to remove the alien. In such proceeding, the
burden of proof shall be on the Attorney General to establish,
by a preponderance of the evidence, that the facts and
information described in subsection (d)(1) of this section 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) of this section shall
contain facts and information demonstrating that the alien -
(A)(i) invested, or is actively in the process of investing,
the requisite capital; and
(ii) sustained the actions described in clause (i) throughout
the period of the alien's residence in the United States; and
(B) is otherwise conforming to the requirements of section
1153(b)(5) of this title.
(2) Period for filing petition
(A) 90-day period before second anniversary
Except as provided in subparagraph (B), the petition under
subsection (c)(1)(A) of this section must be filed during the
90-day period before the second anniversary of the alien's
lawful admission for permanent residence.
(B) Date petitions for good cause
Such a petition may be considered if filed after such date,
but only if the alien establishes to the satisfaction of the
Attorney General good cause and extenuating circumstances for
failure to file the petition during the period described in
subparagraph (A).
(C) Filing of petitions during removal
In the case of an alien who is the subject of removal
hearings as a result of failure to file a petition on a timely
basis in accordance with subparagraph (A), the Attorney General
may stay such removal proceedings against an alien pending the
filing of the petition under subparagraph (B).
(3) Personal interview
The interview under subsection (c)(1)(B) of this section shall
be conducted within 90 days after the date of submitting a
petition under subsection (c)(1)(A) of this section and at a
local office of the Service, designated by the Attorney General,
which is convenient to the parties involved. The Attorney
General, in the Attorney General's discretion, may waive the
deadline for such an interview or the requirement for such an
interview in such cases as may be appropriate.
(e) Treatment of period for purposes of naturalization
For purposes of subchapter III of this chapter, in the case of an
alien who is in the United States as a lawful permanent resident on
a conditional basis under this section, the alien shall be
considered to have been admitted as an alien lawfully admitted for
permanent residence and to be in the United States as an alien
lawfully admitted to the United States for permanent residence.
(f) Definitions
In this section:
(1) The term "alien entrepreneur" means an alien who obtains
the status of an alien lawfully admitted for permanent residence
(whether on a conditional basis or otherwise) under section
1153(b)(5) of this title.
(2) The term "alien spouse" and the term "alien child" mean an
alien who obtains the status of an alien lawfully admitted for
permanent residence (whether on a conditional basis or otherwise)
by virtue of being the spouse or child, respectively, of an alien
entrepreneur.
(3) The term "commercial enterprise" includes a limited
partnership.

AMENDMENTS
2002 - Subsec. (b)(1)(A). Pub. L. 107-273, Sec. 11036(b)(1)(A),
substituted "investment in" for "establishment of".
Subsec. (b)(1)(B). Pub. L. 107-273, Sec. 11036(b)(1)(B), amended
subpar. (B) generally. Prior to amendment, subpar. (B) read as
follows:
"(B)(i) a commercial enterprise was not established by the alien,
"(ii) the alien did not invest or was not actively in the process
of investing the requisite capital; or
"(iii) the alien was not sustaining the actions described in
clause (i) or (ii) throughout the period of the alien's residence
in the United States, or".
Subsec. (d)(1). Pub. L. 107-273, Sec. 11036(b)(2), reenacted
heading without change and amended text generally. Prior to
amendment, text read as follows: "Each petition under subsection
(c)(1)(A) of this section shall contain facts and information
demonstrating that -
"(A) a commercial enterprise was established by the alien;
"(B) the alien invested or was actively in the process of
investing the requisite capital; and
"(C) the alien sustained the actions described in subparagraphs
(A) and (B) throughout the period of the alien's residence in the
United States."
Subsec. (f)(3). Pub. L. 107-273, Sec. 11036(b)(3), added par.
(3).
1996 - Subsec. (b)(2). Pub. L. 104-208 substituted "removal" for
"deportation" in heading and "remove" for "deport" in text.
Subsec. (c)(2)(B). Pub. L. 104-208 substituted "removal" for
"deportation" in heading and text.
Subsec. (c)(3)(D). Pub. L. 104-208 substituted "removal" for
"deportation" in heading and "remove" for "deport" in text.
Subsec. (d)(2)(C). Pub. L. 104-208 substituted "removal" for
"deportation" wherever appearing in heading and text.
1991 - Subsec. (c)(2)(A). Pub. L. 102-232, Sec. 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, Sec.
302(b)(3)(B), struck out "obtaining the status of" before "lawful
admission".
EFFECTIVE DATE OF 2002 AMENDMENT
Amendment by Pub. L. 107-273 effective Nov. 2, 2002 and
applicable to aliens having certain petitions pending under this
section or section 1154 of this title on or after Nov. 2, 2002, see
section 11036(c) of Pub. L. 107-273, set out as a note under
section 1153 of this title.
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104-208 effective, with certain transitional
provisions, on the first day of the first month beginning more than
180 days after Sept. 30, 1996, see section 309 of Pub. L. 104-208,
set out as a note under section 1101 of this title.
EFFECTIVE DATE OF 1991 AMENDMENT
Amendment by Pub. L. 102-232 effective as if included in the
enactment of the Immigration Act of 1990, Pub. L. 101-649, see
section 310(1) of Pub. L. 102-232, set out as a note under section
1101 of this title.
EFFECTIVE DATE
Section effective Oct. 1, 1991, and applicable beginning with
fiscal year 1992, see section 161(a) of Pub. L. 101-649, set out as
an Effective Date of 1990 Amendment note under section 1101 of this
title.

IMMIGRATION BENEFITS
Pub. L. 107-273, div. C, title I, Secs. 11031-11034, Nov. 2,
2002, 116 Stat. 1837-1846, provided that:
"SEC. 11031. REMOVAL OF CONDITIONAL BASIS OF PERMANENT RESIDENT
STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHILDREN.
"(a) 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 described in
this subsection if the alien -
"(A) filed, under section 204(a)(1)(H) of the Immigration and
Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any predecessor
provision), a petition to accord the alien a status under
section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)) that was
approved by the Attorney General after January 1, 1995, and
before August 31, 1998;
"(B) pursuant to such approval, obtained the status of an
alien entrepreneur with permanent resident status on a
conditional basis described in section 216A of such Act (8
U.S.C. 1186b); and
"(C) timely filed, in accordance with section 216A(c)(1)(A)
of such Act (8 U.S.C. 1186b(c)(1)(A)) and before the date of
the enactment of this Act [Nov. 2, 2002], a petition requesting
the removal of such conditional basis.
"(2) Reopening petitions previously denied. -
"(A) In general. - In the case of a petition described in
paragraph (1)(C) that was denied under section 216A(c)(3)(C) of
the Immigration and Nationality 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 petition 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 establish a process under which the
alien may be paroled into the United States if necessary in
order to obtain the determinations under subsection (c), unless
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 material misrepresentation
in the facts and information described in section 216A(d)(1)
of the Immigration and Nationality Act (8 U.S.C. 1186b(d)(1))
and alleged in the petition with respect to a commercial
enterprise.
"(C) 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
proceedings. The Attorney General shall grant such motion
notwithstanding any time and number limitations imposed by law
on motions to reopen such proceedings, except that the scope of
any proceeding 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 reason 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. -
"(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 (regardless of whether such enterprise is a
limited partnership and regardless of whether the alien
entered the enterprise after its formation);
"(ii) subject to subparagraphs (B) and (C), such enterprise
created full-time jobs for not fewer than 10 United States
citizens or aliens lawfully admitted for permanent residence
or other immigrants lawfully authorized to be employed in the
United States (other than the eligible alien and the alien's
spouse, sons, or daughters), and those jobs exist or existed
on any of the dates described in subparagraph (D); and
"(iii) on any of the dates described in subparagraph (D),
the alien is in substantial compliance with the capital
investment requirement described in section 216A(d)(1)(B) of
the Immigration and Nationality Act (8 U.S.C.
1186b(d)(1)(B)).
"(B) Investment under pilot immigration program. - For
purposes of subparagraph (A)(ii), an investment that satisfies
the requirements of section 610(c) of the Departments of
Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note), as in
effect 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 investment in a troubled
business (as defined in 8 CFR 204.6(e), as in effect on the
date of the enactment 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 described in
subparagraph (D), is at no less than the pre-investment level.
"(D) Dates. - The dates described in this subparagraph 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 Immigration and Nationality Act (8 U.S.C. 1186b))
effective as of the second anniversary of the alien's lawful
admission for permanent residence.
"(F) Requirements relating to adverse determinations. -
"(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 notice shall be in writing and shall
state the factual basis for any adverse determination. 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 pursuant
to such rebuttal, 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 Immigration and
Nationality Act (8 U.S.C. 1186b)) effective as of the second
anniversary of the alien's lawful admission for permanent
residence.
"(ii) Continuation of conditional basis if certain 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 determination, the
Attorney 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 Immigration and Nationality Act (8 U.S.C. 1186b)) for a
2-year period.
"(iii) Termination if adverse determination. - 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
determination, 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 children if it was obtained on a
conditional basis under section 216A of the Immigration and
Nationality Act (8 U.S.C. 1186b)).
"(iv) Administrative and judicial review. - An alien may
seek administrative review of an adverse determination made
under subparagraph (A) by filing a petition for such review
with the Board of Immigration Appeals. If the Board of
Immigration Appeals denies the petition, the alien may seek
judicial review. The procedures for judicial 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 Immigration and Nationality Act (8 U.S.C. 1252(a)(1)).
During the period in which an administrative or judicial
appeal under this clause is pending, the Attorney 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 Immigration 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 conditional 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 regardless of whether the alien
entered the enterprise after its formation), in the United
States, regardless 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 included in the petition submitted under
subparagraph (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 removed, the alien must
submit to the Attorney General, 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 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
enterprise (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
enterprise was created before or after the determinations made
under paragraph (1).
"(C) Period for filing petition. -
"(i) 90-day period before second anniversary. - Except as
provided in clause (ii), the petition 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 admission 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 satisfaction 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 subparagraph (B), the Attorney General
shall terminate the permanent resident status of the alien
(and the alien's spouse and children if it was obtained on a
conditional basis under section 216A of the Immigration and
Nationality Act (8 U.S.C. 1186b)) as of the second
anniversary of the continuation, under paragraph (1)(F)(ii),
of the conditional 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
subparagraph (B).
"(E) Determinations after petition. - If a petition 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 misrepresentation
in the facts and information alleged in the petition with
respect to the commercial enterprises included in such
petition;
"(ii) all such enterprises, considered together, created
full-time jobs for not fewer than 10 United States citizens
or aliens lawfully admitted for permanent residence or other
immigrants lawfully authorized to be employed in the United
States (other than the eligible alien and the alien's spouse,
sons, or daughters), and those jobs exist on the date on
which the determination is made, except that -
"(I) this clause shall apply only if the Attorney General made
an adverse determination with respect to the eligible alien
under paragraph (1)(A)(ii);
"(II) the provisions of subparagraphs (B) and (C) of paragraph
(1) shall apply to a determination under this clause in the
same manner as they apply to a determination under paragraph
(1)(A)(ii); and
"(III) if the Attorney General determined under paragraph
(1)(A)(ii) that any jobs satisfying the requirement of such
paragraph were created, the number of those jobs shall be
subtracted from the number of jobs otherwise needed to
satisfy the requirement of this clause; and
"(iii) considering all such enterprises together, on the
date on which the determination is made, the eligible alien
is in substantial compliance with the capital investment
requirement described in section 216A(d)(1)(B) of the
Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)(B)),
except that -
"(I) this clause shall apply only if the Attorney General made
an adverse determination with respect to the eligible alien
under paragraph (1)(A)(iii); and
"(II) if the Attorney General determined under paragraph
(1)(A)(iii) that any capital amount was invested that could
be credited towards compliance with the capital investment
requirement described in section 216A(d)(1)(B) of the
Immigration and Nationality Act (8 U.S.C. 1186b(d)(1)(B)),
such amount shall be subtracted from the amount of capital
otherwise needed to satisfy the requirement of this clause.
"(F) 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 Immigration and Nationality Act (8 U.S.C. 1186b))
effective as of the second anniversary of the continuation,
under paragraph (1)(F)(ii), of the conditional basis of the
alien's lawful admission for permanent residence.
"(G) Requirements relating to adverse determinations. -
"(i) Notice. - If the Attorney General renders an adverse
determination under subparagraph (E), the Attorney General
shall so notify the alien involved. The notice shall be in
writing and shall state the factual basis for any adverse
determination. 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 pursuant to such rebuttal, 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 Immigration and Nationality Act (8 U.S.C. 1186b))
effective as of the second anniversary of the continuation,
under paragraph (1)(F)(ii), of the conditional 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 determination under subparagraph (E),
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 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 conditional basis before the date of the
enactment of this Act [Nov. 2, 2002] by virtue of being the child
of an eligible 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 requires at least 35 hours
of service per week at any time, regardless of who fills the
position.
"SEC. 11032. CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN
ALIEN ENTREPRENEURS, 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 described in subsection (b)(2) and
grant the alien (and any spouse or child of the alien, if the
spouse or child is eligible to receive a visa under section 203(d)
of the Immigration and Nationality Act (8 U.S.C. 1153(d))) the
status of an alien lawfully admitted for permanent residence 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 eligible alien
described in this subsection if the alien -
"(1) filed, under section 204(a)(1)(H) of the Immigration and
Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any predecessor
provision), a petition to accord the alien a status under section
203(b)(5) of such Act (8 U.S.C. 1153(b)(5)) that was approved by
the Attorney General after January 1, 1995, and before August 31,
1998;
"(2) pursuant to such approval, timely filed before the date of
the enactment of this Act [Nov. 2, 2002] an application for
adjustment of status under section 245 of such Act (8 U.S.C.
1255) or an application for an immigrant visa under section
203(b)(5) of such Act (8 U.S.C. 1153(b)(5)); and
"(3) is not inadmissible or deportable on any ground.
"(c) 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 satisfy 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 advance parole.
"(B) Applicants abroad. - In the case of an eligible 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
authorized 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 established
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 enterprise (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 capital 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) contains any
material misrepresentation in the facts and information alleged
in the petition with respect to the commercial enterprises
included in the petition;
"(B) subject to subparagraphs (B) and (C) of section
11031(c)(1), all such enterprises, considered together, created
full-time jobs for not fewer than 10 United States citizens or
aliens lawfully admitted for permanent residence or other
immigrants lawfully authorized to be employed in the United
States (other than the alien and the alien's spouse, sons, or
daughters), and those jobs exist or existed on either of the
dates described in paragraph (3); and
"(C) considering the alien's investments in such enterprises
on either of the dates described in paragraph (3), or on both
such dates, the alien is or was in substantial compliance with
the capital investment requirement described in section
216A(d)(1)(B) of the Immigration and Nationality Act (8 U.S.C.
1186b(d)(1)(B)).
"(3) 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 purposes 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 (Secs.
11031-11034) of subtitle B of title I of div. C of Pub. L. 107-273,
enacting this note] not later than 120 days after the date of
enactment of this Act [Nov. 2, 2002]. Until such regulations are
promulgated, the Attorney General shall not deny a petition filed
or pending under section 216A(c)(1)(A) of the Immigration and
Nationality Act (8 U.S.C. 1186b(c)(1)(A)) that relates to an
eligible alien described in section 11031, or on an application
filed or pending under section 245 of such Act (8 U.S.C. 1255) that
relates to an eligible alien described in section 11032. Until such
regulations are promulgated, the Attorney General shall not
initiate or proceed with removal proceedings under section 240 of
the Immigration and Nationality Act (8 U.S.C. 1229a) that relate to
an eligible alien described in section 11031 or 11032.
"SEC. 11034. DEFINITIONS.
"Except as otherwise provided, the terms used in this chapter
shall have the meaning given such terms in section 101(b) of the
Immigration and Nationality Act (8 U.S.C. 1101(b))."

Last modified: June 14, 2006