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29–006 117TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 117–404 VIRGIN ISLANDS VISA WAIVER ACT OF 2022 JULY 12, 2022.—Committed to the Committee of the Whole House on the State of the Union and ordered to be printed Mr. NADLER, from the Committee on the Judiciary, submitted the following R E P O R T [To accompany H.R. 5460] [Including cost estimate of the Congressional Budget Office] The Committee on the Judiciary, to whom was referred the bill (H.R. 5460) to establish the Virgin Islands visa waiver program, having considered the same, reports favorably thereon with an amendment and recommends that the bill as amended do pass. CONTENTS Page Purpose and Summary ............................................................................................ 3 Background and Need for the Legislation ............................................................. 4 Hearings ................................................................................................................... 6 Committee Consideration ........................................................................................ 7 Committee Votes ...................................................................................................... 7 Committee Oversight Findings ............................................................................... 17 Committee Estimate of Budgetary Effects ............................................................ 17 New Budget Authority and Congressional Budget Office Cost Estimate ........... 17 Duplication of Federal Programs ............................................................................ 19 Performance Goals and Objectives ......................................................................... 19 Advisory on Earmarks ............................................................................................. 19 Section-by-Section Analysis .................................................................................... 19 Changes in Existing Law Made by the Bill, as Reported ..................................... 20 The amendment is as follows: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Virgin Islands Visa Waiver Act of 2022’’. SEC. 2. ADDITION OF VIRGIN ISLANDS VISA WAIVER TO GUAM AND NORTHERN MARIANA IS- LANDS VISA WAIVER. (a) IN GENERAL.—Section 212(l) of the Immigration and Nationality Act (8 U.S.C. 1182(l)) is amended to read as follows: VerDate Sep 11 2014 05:55 Jul 18, 2022 Jkt 047600 PO 00000 Frm 00001 Fmt 6659 Sfmt 6621 E:\HR\OC\HR404.XXX HR404 2 ‘‘(l) GUAM AND NORTHERN MARIANA ISLANDS VISA WAIVER PROGRAM; VIRGIN IS- LANDS VISA WAIVER PROGRAM.— ‘‘(1) IN GENERAL.—The requirement of subsection (a)(7)(B)(i) may be waived by the Secretary of Homeland Security, in the case of an alien applying for ad- mission as a nonimmigrant visitor for business or pleasure and solely for entry into and stay in Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States, for a period not to exceed 45 days, if the Secretary of Homeland Security, after consultation with the Secretary of the Interior, the Secretary of State, and the Governor of Guam and the Gov- ernor of the Commonwealth of the Northern Mariana Islands, or the Governor of the Virgin Islands of the United States, as the case may be, determines that— ‘‘(A) an adequate arrival and departure control system has been devel- oped in Guam and the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States; 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) ALIEN WAIVER OF RIGHTS.—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 an immigration officer’s deter- mination as to the admissibility of the alien at the port of entry into Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Is- lands of the United States; or ‘‘(B) to contest, other than on the basis of an application for withholding of removal under section 241(b)(3) of this Act or under the Convention Against Torture, or an application for asylum if permitted under section 208 of this Act, any action for removal of the alien. ‘‘(3) REGULATIONS.—All necessary regulations to implement this subsection shall be promulgated by the Secretary of Homeland Security, in consultation with the Secretary of the Interior and the Secretary of State. The promulgation of such regulations shall be considered a foreign affairs function for purposes of section 553(a) of title 5, United States Code. At a minimum, such regulations should include, but not necessarily be limited to— ‘‘(A) a listing of all countries whose nationals may obtain the waivers pro- vided by this subsection; and ‘‘(B) any bonding requirements for nationals of some or all of those coun- tries who may present an increased risk of overstays or other potential problems, if different from such requirements otherwise provided by law for nonimmigrant visitors. ‘‘(4) FACTORS.—In determining whether to grant or continue providing the waiver under this subsection to nationals of any country, the Secretary of Homeland Security, in consultation with the Secretary of the Interior and the Secretary of State, shall consider all factors that the Secretary deems relevant, including electronic travel authorizations, procedures for reporting lost and sto- len passports, repatriation of aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit systems, and information exchange. ‘‘(5) SUSPENSION.—The Secretary of Homeland Security shall monitor the ad- mission of nonimmigrant visitors to Guam and the Commonwealth of the North- ern Mariana Islands, and the Virgin Islands of the United States, under this subsection. If the Secretary determines that such admissions have resulted in an unacceptable number of visitors from a country remaining unlawfully in Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Is- lands of the United States, unlawfully obtaining entry to other parts of the United States, or seeking withholding of removal or asylum, or that visitors from a country pose a risk to law enforcement or security interests of Guam or the Commonwealth of the Northern Mariana Islands, or of the Virgin Islands of the United States, or of the United States (including the interest in the en- forcement of the immigration laws of the United States), the Secretary shall suspend the admission of nationals of such country under this subsection. The Secretary of Homeland Security may in the Secretary’s discretion suspend the Guam and Northern Mariana Islands visa waiver program, or the Virgin Is- lands visa waiver program, at any time, on a country-by-country basis, for other good cause. ‘‘(6) ADDITION OF COUNTRIES.—The Governor of Guam and the Governor of the Commonwealth of the Northern Mariana Islands, or the Governor of the Virgin Islands of the United States, may request the Secretary of the Interior and the Secretary of Homeland Security to add a particular country to the list of countries whose nationals may obtain the waiver provided by this subsection, and the Secretary of Homeland Security may grant such request after consulta- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6621 E:\HR\OC\HR404.XXX HR404 3 tion with the Secretary of the Interior and the Secretary of State, and may pro- mulgate regulations with respect to the inclusion of that country and any spe- cial requirements the Secretary of Homeland Security, in the Secretary’s sole discretion, may impose prior to allowing nationals of that country to obtain the waiver provided by this subsection.’’. (b) REGULATIONS DEADLINE.—Not later than one year after the date of enactment of this Act, the Secretary of Homeland Security, in consultation with the Secretary of the Interior and the Secretary of State, shall promulgate any necessary regula- tions to implement the waiver provided in the amendment made by subsection (a) for the Virgin Islands of the United States. (c) WAIVER COUNTRIES.—The regulations described in subsection (b) shall include a listing of all member or associate member countries of the Caribbean Community whose nationals may obtain, on a country-by-country basis, the waiver provided by this section, except that such regulations shall not provide for a listing of any coun- try if the Secretary of Homeland Security determines that such country’s inclusion on such list would represent a threat to the welfare, safety, or security of the United States or its territories and commonwealths, or would increase fraud or abuse of the nonimmigrant visa system. (d) CONFORMING AMENDMENTS.— (1) DOCUMENTATION REQUIREMENTS.—Section 212(a)(7)(B)(iii) of the Immigra- tion and Nationality Act (8 U.S.C. 1182(a)(7)(B)(iii)) is amended to read as fol- lows: ‘‘(iii) SPECIAL VISA WAIVER PROGRAMS.—For a provision authorizing waiver of clause (i) in the case of visitors to Guam or the Common- wealth of the Northern Mariana Islands, or the Virgin Islands of the United States, see subsection (l).’’. (2) ADMISSION OF NONIMMIGRANTS.—Section 214(a)(1) of such Act (8 U.S.C. 1184(a)(1)) is amended by striking ‘‘Guam or the Commonwealth of the North- ern Mariana Islands’’ each place such term appears and inserting ‘‘Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States’’. (e) FEES.—The Secretary of Homeland Security shall establish an administrative processing fee to be charged and collected from individuals seeking to enter the Vir- gin Islands of the United States in accordance with section 212(l) of the Immigration and Nationality Act (8 U.S.C. 1182(l)), as amended by this Act. Such fee shall be set at a level that will ensure recovery of the full costs of such processing, any addi- tional costs associated with the administration of the fees collected, and any sums necessary to offset reduced collections of the nonimmigrant visa fee or the electronic travel authorization fee that otherwise would have been collected from such individ- uals. Purpose and Summary H.R. 5460, the ‘‘Virgin Islands Visa Waiver Act of 2022,’’ would allow the Department of Homeland Security (DHS) to create a visa waiver program limited to the U.S. Virgin Islands (USVI), permit- ting visitors for tourism, business, or medical purposes from certain countries to enter only the USVI without seeking a visa from the Department of State. A limited visa waiver program already exists for the U.S. territories of Guam and the Commonwealth of the Northern Mariana Islands (CNMI). To determine which countries to include in the USVI Visa Waiv- er Program, H.R. 5460 authorizes the Secretary to apply the same criteria currently used in the Guam-CNMI Visa Waiver Program. Such criteria shall include regulatory provisions preventing recal- citrant countries from remaining in the Guam-CNMI Visa Waiver Program. H.R. 5460 also requires the Secretary to consider coun- tries in the Caribbean Community for inclusion in the USVI Visa Waiver Program, but explicitly prohibits inclusion of countries if such inclusion would increase fraud or abuse in our nonimmigrant visa system. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 4 1 Pub. L. No. 82–414 (June 27, 1952). 2 See INA 101(a)(15)(B); 8 U.S.C. 1101(a)(15)(B). 3 Visa Waiver Program, Congressional Research Service (Oct. 12, 2021), https://sgp.fas.org/crs/ homesec/RL32221.pdf. 4 Id. 5 See id. and INA 217; 8 U.S.C. 1187. 6 Visa Waiver Program, Congressional Research Service (Oct. 12, 2021). 7 Pub. L. 106–396; 114 Stat. 1637 (2000). 8 Electronic System for Travel Authorization, U.S. Customs and Border Protection, https:// www.cbp.gov/travel/international-visitors/esta. 9 Pub. L. 106–396. 10 Pub. L. 110–229, 122 Stat. 754, § 702(a) (2008). 11 Id. and INA 212(l); 8 U.S.C. 1182(l). Background and Need for the Legislation The Immigration and Nationality Act (INA) sets forth the basic structure of current immigration law, including a ‘‘preference sys- tem’’ for the distribution of immigrant visas. This structure was es- tablished in 1952, when Congress passed the McCarran Walter Act.1 In general, temporary foreign visitors from most countries must obtain a B nonimmigrant visa from a Department of State consular officer before coming to the United States.2 In-person interviews are generally required, and consular officers use the Consular Consolidated Database to screen visa applicants.3 However, nearly a third of all visitors to the United States enter through the Visa Waiver Program (VWP).4 The VWP allows nation- als from 40 countries—many of which are in Europe—to enter the United States for up to 90 days as temporary visitors for business or pleasure without first obtaining a visa.5 A. THE U.S. VISA WAIVER PROGRAM The VWP was originally established in 1986 as a trial program.6 Congress made the program permanent in 2000, and made im- provements to the security of the program, including by requiring that VWP countries issue machine-readable passports that contain biometric identifiers, and certify—to the maximum extent permis- sible under the law—that each foreign national admitted to or de- parting from that country is screened against international security databases, such as INTERPOL.7 Today, under the VWP, visitors must be approved through the Electronic System for Travel Authorization (ESTA), an automated system that determines eligibility for travelers.8 Such visitors are then inspected by U.S. officials when they arrive at a U.S. port of entry. In addition, prior to arrival, all airline and commercial ves- sels departing from a foreign country destined for a U.S. port of entry must send an electronic passenger manifest. This manifest is checked against security databases.9 B. GUAM-CNMI VISA WAIVER PROGRAM Guam and the CNMI are U.S. territories located in the western Pacific Ocean, nearly 4,000 miles southwest of Hawaii. On May 8, 2008, then-President George W. Bush signed into law the Consoli- dated Natural Resources Act of 2008 (CNRA), which included an extension of U.S. immigration laws to the CNMI.10 The CNRA also amended the Immigration and Nationality Act (INA) to authorize the Secretary of Homeland Security to create a limited visa waiver program to travel only to Guam and the CNMI without a visa for forty-five days.11 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 5 12 See Pub. L. 110–229 § 702(a), and 74 Fed. Reg. 2824, 2826 (Mar. 23, 2011). 13 CBP Announces Electronic Version of Form I–736 for GUAM-CNMI Visa Waiver Program Travelers, U.S. Customs and Border Protection, https://www.cbp.gov/newsroom/national-media- release/cbp-announces-electronic-version-form-i-736-guam-cnmi-visa-waiver. 14 See id. and Visa Waiver Program, Dep’t of State, https://travel.state.gov/content/travel/en/ us-visas/tourism-visit/visa-waiver-program.html. 15 See Pub. L. 110–229 § 702(a), and 74 Fed. Reg. at 2826. 16 See, e.g., Northern Mariana Islands—Economic Indicators, Moody’s Analytics, https:// www.economy.com/northern-mariana-islands/indicators#FACTBOOK. 17 INA 212(l); 8 U.S.C. 1182(l). 18 INA 212(1); 8 U.S.C. 1182(1). The Guam-CNMI Visa Waiver Program could only be created after an adequate arrival and departure control system was estab- lished on the Islands.12 Visitors through this program must either obtain an ESTA or file Form I–736 at a port of entry providing background information on potential inadmissibility.13 Today, twelve countries/geographic areas participate in the Guam-CNMI Visa Waiver Program, and only five of these—the Hong Kong Special Administrative Region (HKSAR), Malaysia, Nauru, Papua New Guinea, and Singapore—do not participate in the U.S. VWP.14 In making the initial determination as to which countries may be eligible for the Guam-CNMI Visa Waiver pro- gram, the CNRA required DHS to balance the economic benefits of tourism from a potential visa waiver country with concerns regard- ing the welfare, safety, or security of the United States.15 Tourism has long been an important part of the territories’ economies.16 DHS may add countries at the request of the Governors of Guam and the CNMI if the Secretary determines, in his or her sole dis- cretion, that inclusion of such countries otherwise meets statutory criteria related to ensuring the welfare, safety and security of the United States.17 After inclusion of countries in the program, DHS must continue to monitor the admission of nonimmigrant visitors to Guam and the CNMI through the Guam-CNMI Visa Waiver Pro- gram, and suspend the admission of nationals from a country if the Secretary determines that admissions from that country have re- sulted in— • an unacceptable number of individuals overstaying their visa; • unlawful entry into other parts of the United States; or • a large number of visitors seeking withholding of removal or seeking asylum. DHS must also suspend admissions from a country if it is deter- mined that visitors from that country pose a risk to the law en- forcement or security interests of the United States, including the interest in the enforcement of U.S. immigration laws.18 C. THE VIRGIN ISLANDS OF THE UNITED STATES The U.S. Virgin Islands (USVI) are located about 45 miles east of Puerto Rico and about 1,000 miles southeast of Miami, Florida, outside of the U.S. Customs Zone. The three larger islands—St. Croix, St. Thomas, and St. John—are home to nearly all of the roughly 105,000 people living in the USVI. The USVI capital, Char- lotte Amalie, is located on St. Thomas, which is the primary center for tourism, government, and commerce. In recent years, tourism and related trade, have become the predominant component of the economy of the USVI. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 6 In 2017, Hurricanes Maria and Irma devastated the USVI’s econ- omy and tourism infrastructure. Prior to 2017, 1.2 million cruise passengers and about 400,000 airplane passengers arrived each year. After, tourism fell drastically and employment in the leisure and hospitality sector fell by 2,200 jobs, representing half of the USVI’s total job loss resulting from the hurricanes. As a result of the severity of damage from Irma and Maria, and the subsequent disruption of the USVI tourism industry, experts believe that a full economic recovery could take years. Representa- tives of the USVI and the tourism industry argue that a visa waiv- er program is necessary to bolster the USVI’s economic growth and increase the USVI’s competitiveness against other Caribbean coun- tries as a tourism destination. Drug trafficking is a serious concern for residents of the terri- tory. Puerto Rico and the U.S. Virgin Islands requested—and re- ceived—a designation as a single High Intensity Drug Trafficking Area (HIDTA) by the Office of National Drug Control Policy in 1994. Since the designation, law enforcement entities in Puerto Rico and the U.S. Virgin Islands have worked closely with federal authorities to stop drug trafficking in the territories. H.R. 5460 is not intended to permit the admission or entry of drug traffickers or members of cartels into the U.S. Virgin Islands. Given this intent, H.R. 5460 includes protections to prevent drug trafficking and to prevent the inclusion of countries that may in- crease the risk of drug trafficking to the U.S. Virgin Islands. For example, H.R. 5460 requires that an adequate departure and ar- rival control system be in place before the USVI Visa Waiver Pro- gram can be implemented. A departure and arrival control system would allow DHS to ex- amine all individuals seeking to visit the U.S. Virgin Islands at the port of entry. H.R. 5460 also prevents the Secretary from author- izing any country for inclusion in the program, if such inclusion would represent a threat to the welfare, safety, or security of the United States or its territories or commonwealths. The legislation also requires the Secretary to suspend a country from the program if visitors from that country pose a risk to law enforcement or secu- rity interests. In placing such restrictions on the program, H.R. 5460 strikes a careful balance, allowing the U.S. Virgin Islands to grow its tour- ism economy while minimizing the risk of fraud and abuse of our immigration system. Hearings For the purposes of clause 3(c)(6)(A) of House rule XIII, the fol- lowing hearings were used to develop H.R. 5460: ‘‘The U.S. Immigration System: The Need for Bold Reforms,’’ held on February 11, 2021, before the Subcommittee on Immigration and Citizenship. The Subcommittee heard testimony from: • Marielena Hincapie´, Executive Director, National Immigration Law Center; • Jennifer Hunt, Professor of Economics, Rutgers University; • John Lettieri, President and CEO, Economic Innovation Group; and • Peter Kirsanow, Partner, Benesch, Friedlander, Coplan, & Aronoff LLP. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 7 ‘‘Why Don’t They Just Get in Line? Barriers to Legal Immigra- tion,’’ held on April 28, 2021, before the Subcommittee on Immigra- tion and Citizenship. The Subcommittee heard testimony from: • David J. Bier, Research Fellow, Cato Institute; • John C. Yang, President and Executive Director, Asian Ameri- cans Advancing Justice | AAJC; • Pareen Mhatre, Iowa City, I.A.; and • Robert Law, Director of Regulatory Affairs and Policy, Center for Immigration Studies. The hearings explored the importance of immigration reform to our nation’s economy and the negative impact of barriers to immi- gration on American communities and businesses. Committee Consideration On April 6, 2022, the Committee met in open session and ordered the bill, H.R. 5460, favorably reported with an amendment in the nature of a substitute, by a rollcall vote of 24 to 14, a quorum being present. Committee Votes In compliance with clause 3(b) of House rule XIII, the following rollcall votes occurred during the Committee’s consideration of H.R. 5460: 1. An amendment by Mr. Biggs to prevent H.R. 5460 from going into effect until the Secretary of Homeland Security certifies that all aliens in the country unlawfully are removed, detained, or en- rolled in the Migrant Protection Protocols, was defeated by a roll- call vote of 22 to 13. The vote was as follows: VerDate Sep 11 2014 05:55 Jul 18, 2022 Jkt 047600 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 8 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 Insert offset folio 13 here HR404.001 9 2. An amendment by Mr. Biggs to prevent H.R. 5460 from going into effect until the Secretary of Homeland Security certifies that the Secretary has achieved and maintains operational control over the entire international land and maritime borders of the United States, was defeated by a rollcall vote of 18 to 9. The vote was as follows: VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 10 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 Insert offset folio 15 here HR404.002 11 3. An amendment by Mr. Roy to prevent H.R. 5460 from going into effect until Secretary Mayorkas ceases to serve as the Sec- retary of Homeland Security, was defeated by a rollcall vote of 21 to 12. The vote was as follows: VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 12 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 Insert offset folio 17 here HR404.003 13 4. An amendment by Mr. Bishop to prevent H.R. 5460 from going into effect until there are policies in place to suspend the right to introduce certain persons from countries where a quarantinable communicable disease exists, was defeated by a roll call vote of 23 to 14. The vote was as follows: VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 14 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00014 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 Insert offset folio 19 here HR404.004 15 5. The motion to report H.R. 5460, as amended, favorably was agreed to by a rollcall vote of 24 to 14. The vote was as follows: VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 16 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 Insert offset folio 21 here HR404.005 17 Committee Oversight Findings In compliance with clause 3(c)(1) of House rule XIII, the Com- mittee advises that the findings and recommendations of the Com- mittee, based on oversight activities under clause 2(b)(1) of House Rule X, are incorporated in the descriptive portions of this report. Committee Estimate of Budgetary Effects Pursuant to clause 3(d)(1) of House rule XIII, the Committee adopts as its own the cost estimate prepared by the Director of the Congressional Budget Office pursuant to section 402 of the Con- gressional Budget Act of 1974. New Budget Authority and Congressional Budget Office Cost Estimate Pursuant to clause 3(c)(2) of House rule XIII and section 308(a) of the Congressional Budget Act of 1974, and pursuant to clause (3)(c)(3) of House rule XIII and section 402 of the Congressional Budget Act of 1974, the Committee sets forth, with respect to the bill, H.R. 5460, the following analysis and estimate prepared by the Director of the Congressional Budget Office. CONGRESSIONAL BUDGET OFFICE, U.S. CONGRESS, Washington, DC, June 22, 2022. Hon. Jerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of Representatives, Washington, DC. DEAR MR. CHAIRMAN: The Congressional Budget Office has pre- pared the enclosed cost estimate for H.R. 5460, the Virgin Islands Visa Waiver Act of 2022. If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Nathaniel Frentz. Sincerely, PHILLIP L. SWAGEL, Director. Enclosure. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 18 H.R. 5460 would allow the Department of Homeland Security (DHS) to waive visa requirements for foreign visitors from certain Caribbean countries who are seeking to enter the U.S. Virgin Is- lands for a stay of up to 45 days. DHS would need to consult with the Departments of the Interior and State and the Governor of the U.S. Virgin Islands to determine whether it has developed ade- quate arrival and departure control systems to ensure the waiver would not threaten the security of the United States. Countries deemed to threaten security or that increase fraud or abuse of the nonimmigrant waiver system would be excluded from the waiver program established in the bill. CBO expects that enacting the bill would decrease revenues be- cause fewer people would require visas issued by the Department of State. Although most visa fees are retained by the Department and spent without further appropriation, some fees are recorded as revenues and deposited into the Treasury. The bill would direct DHS within one year of enactment to establish an administrative processing fee to be collected from foreign visitors seeking to enter the U.S. Virgin Islands under the visa waiver program. The fee, which would be recorded as a revenue would be set at a level to recoup processing costs and offset reduced collections of the non- immigrant visa fee or electronic travel authorization fee that would otherwise be collected from foreign visitors. CBO estimates that, on net, those changes would result in an insignificant increase in reve- nues in each year and over the 2022–2032 period. As part of implementing the new fee, DHS would be required to consult with other federal agencies. Using information from DHS about the costs of promulgating similar rules, CBO estimates that the agencies’ costs to implement the requirements would not be sig- nificant; spending would be subject to the availability of appro- priated funds. The CBO staff contact for this estimate is Nathaniel Frentz. The estimate was reviewed by H. Samuel Papenfuss, Deputy Director of Budget Analysis. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 Insert offset folio 24 here HR404.006 19 Duplication of Federal Programs Pursuant to clause 3(c)(5) of House rule XIII, no provision of H.R. 5460 establishes or reauthorizes a program of the federal govern- ment known to be duplicative of another federal program. Performance Goals and Objectives The Committee states that pursuant to clause 3(c)(4) of House rule XIII, H.R. 5460 would allow DHS to create a visa waiver pro- gram limited to the USVI, permitting visitors for tourism, business, or medical purposes from certain countries to enter only the USVI without seeking a visa from the Department of State. To determine which countries to include in the USVI Visa Waiver Program, H.R. 5460 authorizes the Secretary to apply the same criteria currently used in the Guam-CNMI Visa Waiver Program. H.R. 5460 also re- quires the Secretary to consider countries in the Caribbean Com- munity for inclusion in the USVI Visa Waiver Program. Advisory on Earmarks In accordance with clause 9 of House rule XXI, H.R. 5460 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), or 9(f) of House rule XXI. Section-by-Section Analysis The following discussion describes the bill as reported by the Committee. Sec. 1. Short title Section 1 sets forth the short title of the bill as the ‘‘Virgin Is- lands Visa Waiver Act of 2022.’’ Sec. 2. Addition of Virgin Islands Visa waiver to Guam and North- ern Mariana Islands visa waiver Section (2)(a) amends section 212(l) of the INA, adding authority for the Secretary of Homeland Security to create a Virgin Islands Visa Waiver Program. As with the Guam-CNMI Waiver Program, the following conditions apply— • The Virgin Islands Visa Waiver Program can only be put in ef- fect after the Secretary of Homeland Security, in consultation with the Secretaries of State and the Interior and the Governor of the USVI determine that— » an adequate arrival and departure system has been estab- lished on the territory; and » such waiver does not present a threat to the welfare, safety, or security of the United States or its territories or common- wealths. • In identifying countries that may be included for the program, the Secretary may consider, in his sole discretion, such factors as he sees fit, including electronic travel authorizations, procedures for reporting lost and stolen passports, repatriation of aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit systems, and information exchange. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 20 • The Secretary may include bonding requirements for nationals of some or all of those countries who may present an increased risk of overstays or other potential problems. • The Secretary must continue to monitor the effect of the waiv- er for each country on the list, including whether a waiver for na- tionals of any country— » presents a threat to the welfare, safety, or security of the United States; or » has resulted in such nationals remaining unlawfully in the United States. Section (2)(b) requires the Secretary to promulgate regulations described in Section (2)(a) within one year of the date of enactment of this act. Section (2)(c) requires the Secretary to consider member coun- tries of the Caribbean Community for inclusion in the Virgin Is- lands Visa Waiver Program but prohibits inclusion if the Secretary determines that a country’s inclusion on such list would represent a threat to the welfare, safety, or security of the United States, or increase fraud and abuse of the nonimmigrant visa system. Section (2)(d) makes technical and conforming changes to the INA to reflect the creation of a new Virgin Islands Visa Waiver Program. Section (2)(e) requires the Secretary to establish a fee to recover the full costs of processing visitors through the Virgin Islands Visa Waiver Program. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED In compliance with clause 3(e) of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omit- ted is enclosed in black brackets, new matter is printed in italics, and existing law in which no change is proposed is shown in roman): IMMIGRATION AND NATIONALITY ACT * * * * * * * TITLE II—IMMIGRATION * * * * * * * CHAPTER 2—QUALIFICATIONS FOR ADMISSION OF ALIENS; TRAVEL CONTROL OF CITIZENS AND ALIENS * * * * * * * GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILITY SEC. 212. (a) CLASSES OF ALIENS INELIGIBLE FOR VISAS OR AD- MISSION.—Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to re- ceive visas and ineligible to be admitted to the United States: (1) HEALTH-RELATED GROUNDS.— (A) IN GENERAL.—Any alien— VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00020 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 21 (i) who is determined (in accordance with regula- tions prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance; (ii) except as provided in subparagraph (C), who seeks admission as an immigrant, or who seeks ad- justment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccina- tion against vaccine-preventable diseases, which shall include at least the following diseases: mumps, mea- sles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable dis- eases recommended by the Advisory Committee for Immunization Practices, (iii) who is determined (in accordance with regula- tions prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)— (I) to have a physical or mental disorder and be- havior 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 dis- order, 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 regula- tions prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissibility. (B) WAIVER AUTHORIZED.—For provision authorizing waiver of certain clauses of subparagraph (A), see sub- section (g). (C) EXCEPTION FROM IMMUNIZATION REQUIREMENT FOR ADOPTED CHILDREN 10 YEARS OF AGE OR YOUNGER.—Clause (ii) of subparagraph (A) shall not apply to a child who— (i) is 10 years of age or younger, (ii) is described in subparagraph (F) or (G) of section 101(b)(1); and (iii) is seeking an immigrant visa as an immediate relative under section 201(b), if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has spon- sored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child’s admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph. (2) CRIMINAL AND RELATED GROUNDS.— (A) CONVICTION OF CERTAIN CRIMES.— VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 22 (i) IN GENERAL.—Except as provided in clause (ii), any alien convicted of, or who admits having com- mitted, or who admits committing acts which con- stitute 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 com- mitted (and the alien released from any confine- ment to a prison or correctional institution im- posed for the crime) more than 5 years before the date of application for a visa or other documenta- tion 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 con- stituted the essential elements) did not exceed im- prisonment for one year and, if the alien was con- victed 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 con- victed of 2 or more offenses (other than purely political of- fenses), regardless of whether the conviction was in a sin- gle trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the of- fenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmis- sible. (C) CONTROLLED SUBSTANCE TRAFFICKERS.—Any alien who the consular officer or the Attorney General knows or has reason to believe— (i) is or has been an illicit trafficker in any con- trolled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abet- tor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed sub- stance or chemical, or endeavored to do so; or (ii) is the spouse, son, or daughter of an alien inad- missible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00022 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 23 should have known that the financial or other benefit was the product of such illicit activity, is inadmissible. (D) PROSTITUTION AND COMMERCIALIZED VICE.—Any alien who— (i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has en- gaged in prostitution within 10 years of the date of ap- plication for a visa, admission, or adjustment of sta- tus, (ii) directly or indirectly procures or attempts to pro- cure, or (within 10 years of the date of application for a visa, entry, or adjustment of status) procured or at- tempted 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 re- lated to prostitution, is inadmissible. (E) CERTAIN ALIENS INVOLVED IN SERIOUS CRIMINAL AC- TIVITY WHO HAVE ASSERTED IMMUNITY FROM PROSECU- TION.—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). (G) FOREIGN GOVERNMENT OFFICIALS WHO HAVE COM- MITTED PARTICULARLY SEVERE VIOLATIONS OF RELIGIOUS FREEDOM.—Any alien who, while serving as a foreign gov- ernment official, was responsible for or directly carried out, at any time, particularly severe violations of religious free- dom, as defined in section 3 of the International Religious Freedom Act of 1998 (22 U.S.C. 6402), is inadmissible. (H) SIGNIFICANT TRAFFICKERS IN PERSONS.— (i) IN GENERAL.—Any alien who commits or con- spires to commit human trafficking offenses in the United States or outside the United States, or who the consular officer, the Secretary of Homeland Security, the Secretary of State, or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in per- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 24 sons, as defined in the section 103 of such Act, is inad- missible. (ii) BENEFICIARIES OF TRAFFICKING.—Except as pro- vided in clause (iii), any alien who the consular officer or the Attorney General knows or has reason to be- lieve is the spouse, son, or daughter of an alien inad- missible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible. (iii) EXCEPTION FOR CERTAIN SONS AND DAUGH- TERS.—Clause (ii) shall not apply to a son or daughter who was a child at the time he or she received the benefit described in such clause. (I) MONEY LAUNDERING.—Any alien— (i) who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is en- gaging, or seeks to enter the United States to engage, in an offense which is described in section 1956 or 1957 of title 18, United States Code (relating to laun- dering of monetary instruments); or (ii) who a consular officer or the Attorney General knows is, or has been, a knowing aider, abettor, assist- er, conspirator, or colluder with others in an offense which is described in such section; is inadmissible. (3) SECURITY AND RELATED GROUNDS.— (A) IN GENERAL.—Any alien who a consular officer or the Attorney General knows, or has reasonable ground to be- lieve, seeks to enter the United States to engage solely, principally, or incidentally in— (i) any activity (I) to violate any law of the United States relating to espionage or sabotage or (II) to vio- late or evade any law prohibiting the export from the United States of goods, technology, or sensitive infor- mation, (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; (II) a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activ- ity (as defined in clause (iv)); (III) has, under circumstances indicating an in- tention to cause death or serious bodily harm, in- cited terrorist activity; VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 25 (IV) is a representative (as defined in clause (v)) of— (aa) a terrorist organization (as defined in clause (vi)); or (bb) a political, social, or other group that endorses or espouses terrorist activity; (V) is a member of a terrorist organization de- scribed in subclause (I) or (II) of clause (vi); (VI) is a member of a terrorist organization de- scribed in clause (vi)(III), unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization; (VII) endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization; (VIII) has received military-type training (as de- fined in section 2339D(c)(1) of title 18, United States Code) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in clause (vi)); or (IX) is the spouse or child of an alien who is in- admissible under this subparagraph, if the activ- ity causing the alien to be found inadmissible oc- curred within the last 5 years, 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) EXCEPTION.—Subclause (IX) of clause (i) does not apply to a spouse or child— (I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or (II) whom the consular officer or Attorney Gen- eral has reasonable grounds to believe has re- nounced the activity causing the alien to be found inadmissible under this section. (iii) 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 it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following: (I) The highjacking or sabotage of any convey- ance (including an aircraft, vessel, or vehicle). (II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another indi- vidual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condi- tion for the release of the individual seized or de- tained. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00025 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 26 (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 nu- clear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere per- sonal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause sub- stantial damage to property. (VI) A threat, attempt, or conspiracy to do any of the foregoing. (iv) ENGAGE IN TERRORIST ACTIVITY DEFINED.—As used in this Act, the term ‘‘engage in terrorist activity’’ means, in an individual capacity or as a member of an organization— (I) to commit or to incite to commit, under cir- cumstances indicating an intention to cause death or serious bodily injury, a terrorist activity; (II) to prepare or plan a terrorist activity; (III) to gather information on potential targets for terrorist activity; (IV) to solicit funds or other things of value for— (aa) a terrorist activity; (bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or (cc) a terrorist organization described in clause (vi)(III), unless the solicitor can dem- onstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a ter- rorist organization; (V) to solicit any individual— (aa) to engage in conduct otherwise de- scribed in this subsection; (bb) for membership in a terrorist organiza- tion described in clause (vi)(I) or (vi)(II); or (cc) for membership in a terrorist organiza- tion described in clause (vi)(III) unless the so- licitor can demonstrate by clear and con- vincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization; or (VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, commu- nications, funds, transfer of funds or other mate- rial financial benefit, false documentation or iden- tification, weapons (including chemical, biological, or radiological weapons), explosives, or training— VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00026 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 27 (aa) for the commission of a terrorist activ- ity; (bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity; (cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or (dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can dem- onstrate by clear and convincing evidence that the actor did not know, and should not rea- sonably have known, that the organization was a terrorist organization. (v) REPRESENTATIVE DEFINED.—As used in this para- graph, the term ‘‘representative’’ includes an officer, official, or spokesman of an organization, and any per- son who directs, counsels, commands, or induces an or- ganization or its members to engage in terrorist activ- ity. (vi) TERRORIST ORGANIZATION DEFINED.—As used in this section, the term ‘‘terrorist organization’’ means an organization— (I) designated under section 219; (II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attor- ney General or the Secretary of Homeland Secu- rity, as a terrorist organization, after finding that the organization engages in the activities de- scribed in subclauses (I) through (VI) of clause (iv); or (III) that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv). (C) FOREIGN POLICY.— (i) IN GENERAL.—An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have poten- tially 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 govern- ment, or who is a candidate for election to a foreign government office during the period immediately pre- ceding the election for that office, shall not be exclud- able 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, state- ments, or associations, if such beliefs, statements, or associations would be lawful within the United States. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 28 (iii) EXCEPTION FOR OTHER ALIENS.—An alien, not described in clause (ii), shall not be excludable or sub- ject 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 asso- ciations, 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 deter- mination 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 mem- bership or affiliation if the alien establishes to the sat- isfaction 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 applica- tion, or (b) 5 years before the date of such applica- tion, in the case of an alien whose member- ship or affiliation was with the party control- ling 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 dis- cretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00028 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 29 daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien law- fully admitted for permanent residence for humani- tarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States. (E) PARTICIPANTS IN NAZI PERSECUTION, GENOCIDE, OR THE COMMISSION OF ANY ACT OF TORTURE OR EXTRAJUDICIAL KILLING.— (i) PARTICIPATION IN NAZI PERSECUTIONS.—Any alien who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with— (I) the Nazi government of Germany, (II) any government in any area occupied by the military forces of the Nazi government of Ger- many, (III) any government established with the as- sistance 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 or- dered, incited, assisted, or otherwise participated in genocide, as defined in section 1091(a) of title 18, United States Code, is inadmissible (iii) COMMISSION OF ACTS OF TORTURE OR EXTRAJUDICIAL KILLINGS.—Any alien who, outside the United States, has committed, ordered, incited, as- sisted, or otherwise participated in the commission of— (I) any act of torture, as defined in section 2340 of title 18, United States Code; or (II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note), is inadmissible. (F) ASSOCIATION WITH TERRORIST ORGANIZATIONS.—Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after con- sultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or inci- dentally in activities that could endanger the welfare, safe- ty, or security of the United States is inadmissible. (G) RECRUITMENT OR USE OF CHILD SOLDIERS.—Any alien who has engaged in the recruitment or use of child soldiers in violation of section 2442 of title 18, United States Code, is inadmissible. (4) PUBLIC CHARGE.— VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00029 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 30 (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 applica- tion for admission or adjustment of status, is likely at any time to become a public charge is inadmissible. (B) FACTORS TO BE TAKEN INTO ACCOUNT.—(i) In deter- mining whether an alien is inadmissible under this para- graph, 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 con- sular 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 num- ber issued under section 201(b)(2) or 203(a) is inadmissible under this paragraph unless— (i) the alien has obtained— (I) status as a spouse or a child of a United States citizen pursuant to clause (ii), (iii), or (iv) of section 204(a)(1)(A), or (II) classification pursuant to clause (ii) or (iii) of section 204(a)(1)(B); or (III) classification or status as a VAWA self-pe- titioner; or (ii) the person petitioning for the alien’s admission (and any additional sponsor required under section 213A(f) or any alternative sponsor permitted under paragraph (5)(B) of such section) has executed an affi- davit of support described in section 213A with respect to such alien. (D) CERTAIN EMPLOYMENT-BASED IMMIGRANTS.—Any alien who seeks admission or adjustment of status under a visa number issued under section 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 owner- ship interest) is inadmissible under this paragraph unless such relative has executed an affidavit of support de- scribed in section 213A with respect to such alien. (E) SPECIAL RULE FOR QUALIFIED ALIEN VICTIMS.—Sub- paragraphs (A), (B), and (C) shall not apply to an alien who— (i) is a VAWA self-petitioner; (ii) is an applicant for, or is granted, nonimmigrant status under section 101(a)(15)(U); or (iii) is a qualified alien described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(c)). (5) LABOR CERTIFICATION AND QUALIFICATIONS FOR CERTAIN IMMIGRANTS.— VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00030 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 31 (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 ad- versely affect the wages and working conditions of workers in the United States similarly employed. (ii) CERTAIN ALIENS SUBJECT TO SPECIAL RULE.—For purposes of clause (i)(I), an alien described in this clause is an alien who— (I) is a member of the teaching profession, or (II) has exceptional ability in the sciences or the arts. (iii) PROFESSIONAL ATHLETES.— (I) IN GENERAL.—A certification made under clause (i) with respect to a professional athlete shall remain valid with respect to the athlete after the athlete changes employer, if the new employer is a team in the same sport as the team which employed the athlete when the athlete first ap- plied for the certification. (II) DEFINITION.—For purposes of subclause (I), the term ‘‘professional athlete’’ means an indi- vidual who is employed as an athlete by— (aa) a team that is a member of an associa- tion of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association gov- erns 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 affili- ated with such an association. (iv) LONG DELAYED ADJUSTMENT APPLICANTS.—A cer- tification made under clause (i) with respect to an in- dividual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the cer- tification was issued. (B) UNQUALIFIED PHYSICIANS.—An alien who is a grad- uate 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 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00031 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 32 principally to perform services as a member of the medical profession is inadmissible, unless the alien (i) has passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health and Human Services) and (ii) is competent in oral and written English. For purposes of the previous sentence, an alien who is a graduate of a medical school shall be considered to have passed parts I and II of the National Board of Medical Examiners if the alien was fully and permanently licensed to practice medi- cine in a State on January 9, 1978, and was practicing medicine in a State on that date. (C) UNCERTIFIED FOREIGN HEALTH-CARE WORKERS.—Sub- ject to subsection (r), 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 inde- pendent credentialing organization approved by the Attor- ney General in consultation with the Secretary of Health and Human Services, verifying that— (i) the alien’s education, training, license, and expe- rience— (I) meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the applica- tion; (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 Sec- retary 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 na- tionally recognized, commercially available, standard- ized 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 pre- dicting the success on the profession’s licensing or cer- tification examination, the alien has passed such a test or has passed such an examination. For purposes of clause (ii), determination of the standard- ized tests required and of the minimum scores that are ap- propriate 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 for inad- missibility of aliens under subparagraphs (A) and (B) shall VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00032 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 33 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 ar- rives in the United States at any time or place other than as designated by the Attorney General, is inad- missible. (ii) EXCEPTION FOR CERTAIN BATTERED WOMEN AND CHILDREN.—Clause (i) shall not apply to an alien who demonstrates that— (I) the alien is a VAWA self-petitioner; (II)(a) the alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the spouse’s or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, or (b) the alien’s child has been bat- tered or subjected to extreme cruelty by a spouse or parent of the alien (without the active partici- pation of the alien in the battery or cruelty) or by a member of the spouse’s or parent’s family resid- ing 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 ac- tively participate in such battery or cruelty, and (III) there was a substantial connection between the battery or cruelty described in subclause (I) or (II) and the alien’s unlawful entry into the United States. (B) FAILURE TO ATTEND REMOVAL PROCEEDING.—Any alien who without reasonable cause fails or refuses to at- tend 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.— (I) IN GENERAL.—Any alien who falsely rep- resents, or has falsely represented, himself or her- self to be a citizen of the United States for any purpose or benefit under this Act (including sec- tion 274A) or any other Federal or State law is in- admissible. (II) EXCEPTION.—In the case of an alien making a representation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturaliza- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00033 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 34 tion), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be inadmis- sible under any provision of this subsection based on such representation. (iii) WAIVER AUTHORIZED.—For provision authorizing waiver of clause (i), see subsection (i). (D) STOWAWAYS.—Any alien who is a stowaway is inad- missible. (E) SMUGGLERS.— (i) IN GENERAL.—Any alien who at any time know- ingly 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 REUNIFICA- TION.—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 phys- ically 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, be- fore 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 inadmis- sible. (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 inadmissible until the alien has been out- side 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 ap- plication for admission— (I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired pass- port, or other suitable travel document, or docu- ment of identity and nationality if such document VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00034 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 35 is required under the regulations issued by the Attorney General under section 211(a), or (II) whose visa has been issued without compli- ance 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— (I) is not in possession of a passport valid for a minimum of six months from the date of the expi- ration 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). ø(iii) GUAM AND NORTHERN MARIANA ISLANDS VISA WAIVER.—For provision authorizing waiver of clause (i) in the case of visitors to Guam or the Commonwealth of the Northern Mariana Islands, see subsection (l).¿ (iii) SPECIAL VISA WAIVER PROGRAMS.—For a provi- sion authorizing waiver of clause (i) in the case of visi- tors to Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States, see subsection (l). (iv) VISA WAIVER PROGRAM.—For authority to waive the requirement of clause (i) under a program, see sec- tion 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 depar- ture was a nonimmigrant and who is seeking to reenter the United States as a nonimmigrant. (9) ALIENS PREVIOUSLY REMOVED.— (A) CERTAIN ALIENS PREVIOUSLY REMOVED.— (i) ARRIVING ALIENS.—Any alien who has been or- dered 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 re- moval (or within 20 years in the case of a second or subsequent removal or at any time in the case of an VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00035 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 36 alien convicted of an aggravated felony) is inadmis- sible. (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 subse- quent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. (iii) EXCEPTION.—Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s reembarkation at a place out- side the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien’s reapplying for admission. (B) ALIENS UNLAWFULLY PRESENT.— (i) IN GENERAL.—Any alien (other than an alien law- fully 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 admis- sion within 3 years of the date of such alien’s de- parture 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 pend- ing 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 author- ization in the United States. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00036 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 37 (III) FAMILY UNITY.—No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (i). (IV) BATTERED WOMEN AND CHILDREN.—Clause (i) shall not apply to an alien who would be de- scribed in paragraph (6)(A)(ii) if ‘‘violation of the terms of the alien’s nonimmigrant visa’’ were sub- stituted for ‘‘unlawful entry into the United States’’ in subclause (III) of that paragraph. (V) VICTIMS OF A SEVERE FORM OF TRAFFICKING IN PER- SONS.—Clause (i) shall not apply to an alien who dem- onstrates that the severe form of trafficking (as that term is defined in section 103 of the Trafficking Victims Protec- tion Act of 2000 (22 U.S.C. 7102)) was at least one central reason for the alien’s unlawful presence in the United States. (iv) TOLLING FOR GOOD CAUSE.—In the case of an alien who— (I) has been lawfully admitted or paroled into the United States, (II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and (III) has not been employed without authoriza- tion 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 appli- cation, but not to exceed 120 days. (v) WAIVER.—The Attorney General has sole discre- tion 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 per- manent residence, if it is established to the satisfac- tion of the Attorney General that the refusal of admis- sion 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 IMMI- GRATION 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. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00037 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 38 (ii) EXCEPTION.—Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien’s re- applying for admission. (iii) WAIVER.—The Secretary of Homeland Security may waive the application of clause (i) in the case of an alien who is a VAWA self-petitioner if there is a connection between— (I) the alien’s battering or subjection to extreme cruelty; and (II) the alien’s removal, departure from the United States, reentry or reentries into the United States; or attempted reentry into the United States. (10) MISCELLANEOUS.— (A) PRACTICING POLYGAMISTS.—Any immigrant who is coming to the United States to practice polygamy is inad- missible. (B) GUARDIAN REQUIRED TO ACCOMPANY HELPLESS ALIEN.—Any alien— (i) who is accompanying another alien who is inad- missible and who is certified to be helpless from sick- ness, mental or physical disability, or infancy pursu- ant 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) ALIENS SUPPORTING ABDUCTORS AND RELATIVES OF ABDUCTORS.—Any alien who— (I) is known by the Secretary of State to have intentionally assisted an alien in the conduct de- scribed in clause (i), (II) is known by the Secretary of State to be in- tentionally providing material support or safe haven to an alien described in clause (i), or (III) is a spouse (other than the spouse who is the parent of the abducted child), child (other than the abducted child), parent, sibling, or agent of an alien described in clause (i), if such person has been designated by the Secretary of State at the Secretary’s sole and unreviewable discretion, is inadmissible until the child described in clause VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00038 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 39 (i) is surrendered to the person granted custody by the order described in that clause, and such per- son and child are permitted to return to the United States or such person’s place of residence. (iii) EXCEPTIONS.—Clauses (i) and (ii) shall not apply— (I) to a government official of the United States who is acting within the scope of his or her official duties; (II) to a government official of any foreign gov- ernment if the official has been designated by the Secretary of State at the Secretary’s sole and unreviewable discretion; or (III) so long as the child is located in a foreign state that is a party to the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980. (D) UNLAWFUL VOTERS.— (i) IN GENERAL.—Any alien who has voted in viola- tion of any Federal, State, or local constitutional provi- sion, statute, ordinance, or regulation is inadmissible. (ii) EXCEPTION.—In the case of an alien who voted in a Federal, State, or local election (including an initia- tive, recall, or referendum) in violation of a lawful re- striction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien perma- nently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such viola- tion. (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 citi- zenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is inadmissible. (b) 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 adjust- ment 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 excludable or ineligible for entry or ad- justment of status. (2) The Secretary of State may waive the requirements of paragraph (1) with respect to a particular alien or any class or classes of inadmissible aliens. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00039 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 40 (3) Paragraph (1) does not apply to any alien inadmissible under paragraph (2) or (3) of subsection (a). (d)(1) The Attorney General shall determine whether a ground for inadmissible exists with respect to a nonimmigrant described in section 101(a)(15)(S). The Attorney General, in the Attorney Gen- eral’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 re- garded 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). (3)(A) Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be ad- mitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seek- ing 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 admis- sion and return of inadmissible aliens applying for temporary ad- mission under this paragraph. (B)(i) The Secretary of State, after consultation with the Attorney General and the Secretary of Homeland Security, or the Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, may determine in such Secretary’s sole unreviewable discretion that subsection (a)(3)(B) shall not apply with respect to an alien within the scope of that subsection or that subsection (a)(3)(B)(vi)(III) shall not apply to a group within the scope of that subsection, except that no such waiver may be ex- tended to an alien who is within the scope of subsection (a)(3)(B)(i)(II), no such waiver may be extended to an alien who is a member or representative of, has voluntarily and knowingly en- gaged in or endorsed or espoused or persuaded others to endorse or espouse or support terrorist activity on behalf of, or has volun- tarily and knowingly received military-type training from a ter- rorist organization that is described in subclause (I) or (II) of sub- section (a)(3)(B)(vi), and no such waiver may be extended to a group that has engaged terrorist activity against the United States or another democratic country or that has purposefully engaged in a pattern or practice of terrorist activity that is directed at civil- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00040 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 41 ians. Such a determination shall neither prejudice the ability of the United States Government to commence criminal or civil pro- ceedings involving a beneficiary of such a determination or any other person, nor create any substantive or procedural right or ben- efit for a beneficiary of such a determination or any other person. Notwithstanding any other provision of law (statutory or nonstatu- tory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review such a determination or revocation ex- cept in a proceeding for review of a final order of removal pursuant to section 1252 of this title, and review shall be limited to the ex- tent provided in section 1252(a)(2)(D). The Secretary of State may not exercise the discretion provided in this clause with respect to an alien at any time during which the alien is the subject of pend- ing removal proceedings under section 1229a of this title. (ii) Not later than 90 days after the end of each fiscal year, the Secretary of State and the Secretary of Homeland Security shall each provide to the Committees on the Judiciary of the House of Representatives and of the Senate, the Committee on International Relations of the House of Representatives, the Committee on For- eign Relations of the Senate, and the Committee on Homeland Se- curity of the House of Representatives a report on the aliens to whom such Secretary has applied clause (i). Within one week of ap- plying clause (i) to a group, the Secretary of State or the Secretary of Homeland Security shall provide a report to such Committees. (4) Either or both of the requirements of paragraph (7)(B)(i) of subsection (a) may be waived by the Attorney General and the Sec- retary of State acting jointly (A) on the basis of unforeseen emer- gency in individual cases, or (B) on the basis of reciprocity with re- spect to nationals of foreign contiguous territory or of adjacent is- lands and residents thereof having a common nationality with such nationals, or (C) in the case of aliens proceeding in immediate and continuous transit through the United States under contracts au- thorized in section 238(c). (5)(A) The Attorney General may, except as provided in subpara- graph (B) or in section 214(f), in his discretion parole into the United States temporarily under such conditions as he may pre- scribe 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. (7) The provisions of subsection (a) (other than paragraph (7)) shall be applicable to any alien who shall leave Guam, the Com- monwealth of the Northern Mariana Islands, Puerto Rico, or the Virgin Islands of the United States, and who seeks to enter the VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00041 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 42 continental United States or any other place under the jurisdiction of the United States. Any alien described in this paragraph, who is denied admission to the United States, shall be immediately re- moved in the manner provided by section 241(c) of this Act. (8) Upon a basis of reciprocity accredited officials of foreign gov- ernments, their immediate families, attendants, servants, and per- sonal 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. (11) The Attorney General may, in his discretion for humani- tarian 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 other- wise 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), if no previous civil money penalty was imposed against the alien under section 274C and the offense was committed solely to assist, aid, or support the alien’s spouse or child (and not another indi- vidual). No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this paragraph. (13)(A) The Secretary of Homeland Security shall determine whether a ground for inadmissibility exists with respect to a non- immigrant described in section 101(a)(15)(T), except that the ground for inadmissibility described in subsection (a)(4) shall not apply with respect to such a nonimmigrant. (B) In addition to any other waiver that may be available under this section, in the case of a nonimmigrant described in section 101(a)(15)(T), if the Secretary of Homeland Security considers it to be in the national interest to do so, the Secretary of Homeland Se- curity, in the Attorney General’s discretion, may waive the applica- tion of— (i) subsection (a)(1); and (ii) any other provision of subsection (a) (excluding para- graphs (3), (4), (10)(C), and (10(E)) if the activities rendering the alien inadmissible under the provision were caused by, or were incident to, the victimization described in section 101(a)(15)(T)(i)(I). VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00042 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 43 (14) The Secretary of Homeland Security shall determine wheth- er a ground of inadmissibility exists with respect to a non- immigrant described in section 101(a)(15)(U). The Secretary of Homeland Security, 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)(U), if the Secretary of Homeland Security considers it to be in the public or national interest to do so. (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 na- tionality 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 Infor- mation Agency pursuant to regulations prescribed by him, had des- ignated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was en- gaged, or (iii) who came to the United States or acquired such sta- tus in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent resi- dence, 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 re- sided and been physically present in the country of his nationality or his last residence for an aggregate of a least two years following departure from the United States: Provided, That upon the favor- able 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 Commis- sioner 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 inter- ested United States Government agency on behalf of an alien de- scribed in clause (iii), the waiver shall be subject to the require- ments of section 214(l): 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 fur- nished 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 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00043 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 44 for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a com- mercial airline has failed to comply with regulations of the Attor- ney 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 detec- tion), 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 perma- nent residence, or of an alien who has been issued an im- migrant visa, (B) has a son or daughter who is a United States citizen, or an alien lawfully admitted for permanent residence, or an alien who has been issued an immigrant visa; or (C) is a VAWA self-petitioner, in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in the discretion of the Attorney General after consultation with the Secretary of Health and Human Services, may by regulation prescribe; (2) subsection (a)(1)(A)(ii) in the case of any alien— (A) who receives vaccination against the vaccine-prevent- able 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, ac- cording 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 require- ment 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 accord- ance with such terms, conditions, and controls, if any, includ- ing the giving of bond, as the Attorney General, in the discre- tion of the Attorney General after consultation with the Sec- retary of Health and Human Services, may by regulation pre- scribe. (h) The Attorney General may, in his discretion, waive the appli- cation of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if— (1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that— (i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00044 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 45 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 se- curity 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 de- nial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or (C) the alien is a VAWA self-petitioner; and (2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regula- tions prescribe, has consented to the alien’s applying or re- applying for a visa, for admission to the United States, or ad- justment 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 commit- ting acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act in- volving 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 resi- dence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully re- sided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of pro- ceedings 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 per- manent residence if it is established to the satisfaction of the Attor- ney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the cit- izen or lawfully resident spouse or parent of such an alien or, in the case of a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien or the alien’s United States citizen, lawful permanent resident, or qualified alien parent or child. (2) No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph (1). (j)(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 profes- sions, 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 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00045 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 46 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 institu- tion or agency, except that, in the case of such an agreement by a school of medicine, any one or more of its affiliated hos- pitals which are to participate in the provision of the graduate medical education or training must join in the agreement. (B) Before making such agreement, the accredited school has been satisfied that the alien (i) is a graduate of a school of medicine which is accredited by a body or bodies approved for the purpose by the Secretary of Education (regardless of whether such school of medicine is in the United States); or (ii)(I) has passed parts I and II of the National Board of Med- ical 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 satis- factorily 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 Exam- iners examination if the alien was fully and permanently li- censed 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 coun- try 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 Di- rector 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 Direc- tor that the country to which the alien will return at the end of such specialty education or training has an excep- tional 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 VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00046 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 47 and if a commitment and written assurance with respect to the alien’s new program have been provided in accord- ance with subparagraph (C). (E) The alien furnishes the Attorney General each year with an affidavit (in such form as the Attorney General shall pre- scribe) 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 edu- cation 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 pub- lic 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 examina- tion (administered by the Federation of State Medical Boards of the United States) or an equivalent examination as deter- mined 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 annu- ally shall transmit to the Congress a report on aliens who have submitted affidavits described in paragraph (1)(E), and shall in- clude in such report the name and address of each such alien, the medical education or training program in which such alien is par- ticipating, and the status of such alien in that program. (k) Any alien, inadmissible from the United States under para- graph (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 satis- fied that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the im- migrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contig- uous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission. ø(l) GUAM AND NORTHERN MARIANA ISLANDS VISA WAIVER PRO- GRAM.— ø(1) IN GENERAL.—The requirement of subsection (a)(7)(B)(i) may be waived by the Secretary of Homeland Security, in the case of an alien applying for admission as a nonimmigrant vis- itor for business or pleasure and solely for entry into and stay in Guam or the Commonwealth of the Northern Mariana Is- lands for a period not to exceed 45 days, if the Secretary of Homeland Security, after consultation with the Secretary of the Interior, the Secretary of State, the Governor of Guam and VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00047 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 48 the Governor of the Commonwealth of the Northern Mariana Islands, determines that— ø(A) an adequate arrival and departure control system has been developed in Guam and the Commonwealth of the Northern Mariana Islands; and ø(B) such a waiver does not represent a threat to the welfare, safety, or security of the United States or its terri- tories and commonwealths. ø(2) ALIEN WAIVER OF RIGHTS.—An alien may not be pro- vided a waiver under this subsection unless the alien has waived any right— ø(A) to review or appeal under this Act an immigration officer’s determination as to the admissibility of the alien at the port of entry into Guam or the Commonwealth of the Northern Mariana Islands; or ø(B) to contest, other than on the basis of an application for withholding of removal under section 241(b)(3) of this Act or under the Convention Against Torture, or an appli- cation for asylum if permitted under section 208, any ac- tion for removal of the alien. ø(3) REGULATIONS.—All necessary regulations to implement this subsection shall be promulgated by the Secretary of Home- land Security, in consultation with the Secretary of the Interior and the Secretary of State, on or before the 180th day after the date of enactment of the Consolidated Natural Resources Act of 2008. The promulgation of such regulations shall be consid- ered a foreign affairs function for purposes of section 553(a) of title 5, United States Code. At a minimum, such regulations should include, but not necessarily be limited to— ø(A) a listing of all countries whose nationals may obtain the waiver also provided by this subsection, except that such regulations shall provide for a listing of any country from which the Commonwealth has received a significant economic benefit from the number of visitors for pleasure within the one-year period preceding the date of enactment of the Consolidated Natural Resources Act of 2008, unless the Secretary of Homeland Security determines that such country’s inclusion on such list would represent a threat to the welfare, safety, or security of the United States or its territories; and ø(B) any bonding requirements for nationals of some or all of those countries who may present an increased risk of overstays or other potential problems, if different from such requirements otherwise provided by law for non- immigrant visitors. ø(4) FACTORS.—In determining whether to grant or continue providing the waiver under this subsection to nationals of any country, the Secretary of Homeland Security, in consultation with the Secretary of the Interior and the Secretary of State, shall consider all factors that the Secretary deems relevant, in- cluding electronic travel authorizations, procedures for report- ing lost and stolen passports, repatriation of aliens, rates of re- fusal for nonimmigrant visitor visas, overstays, exit systems, and information exchange. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00048 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 49 ø(5) SUSPENSION.—The Secretary of Homeland Security shall monitor the admission of nonimmigrant visitors to Guam and the Commonwealth of the Northern Mariana Islands under this subsection. If the Secretary determines that such admis- sions have resulted in an unacceptable number of visitors from a country remaining unlawfully in Guam or the Common- wealth of the Northern Mariana Islands, unlawfully obtaining entry to other parts of the United States, or seeking with- holding of removal or asylum, or that visitors from a country pose a risk to law enforcement or security interests of Guam or the Commonwealth of the Northern Mariana Islands or of the United States (including the interest in the enforcement of the immigration laws of the United States), the Secretary shall suspend the admission of nationals of such country under this subsection. The Secretary of Homeland Security may in the Secretary’s discretion suspend the Guam and Northern Mar- iana Islands visa waiver program at any time, on a country- by-country basis, for other good cause. ø(6) ADDITION OF COUNTRIES.—The Governor of Guam and the Governor of the Commonwealth of the Northern Mariana Islands may request the Secretary of the Interior and the Sec- retary of Homeland Security to add a particular country to the list of countries whose nationals may obtain the waiver pro- vided by this subsection, and the Secretary of Homeland Secu- rity may grant such request after consultation with the Sec- retary of the Interior and the Secretary of State, and may pro- mulgate regulations with respect to the inclusion of that coun- try and any special requirements the Secretary of Homeland Security, in the Secretary’s sole discretion, may impose prior to allowing nationals of that country to obtain the waiver pro- vided by this subsection.¿ (l) GUAM AND NORTHERN MARIANA ISLANDS VISA WAIVER PRO- GRAM; VIRGIN ISLANDS VISA WAIVER PROGRAM.— (1) IN GENERAL.—The requirement of subsection (a)(7)(B)(i) may be waived by the Secretary of Homeland Security, in the case of an alien applying for admission as a nonimmigrant vis- itor for business or pleasure and solely for entry into and stay in Guam or the Commonwealth of the Northern Mariana Is- lands, or the Virgin Islands of the United States, for a period not to exceed 45 days, if the Secretary of Homeland Security, after consultation with the Secretary of the Interior, the Sec- retary of State, and the Governor of Guam and the Governor of the Commonwealth of the Northern Mariana Islands, or the Governor of the Virgin Islands of the United States, as the case may be, determines that— (A) an adequate arrival and departure control system has been developed in Guam and the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States; and (B) such a waiver does not represent a threat to the wel- fare, safety, or security of the United States or its territories and commonwealths. (2) ALIEN WAIVER OF RIGHTS.—An alien may not be provided a waiver under this subsection unless the alien has waived any right— VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00049 Fmt 6659 Sfmt 6603 E:\HR\OC\HR404.XXX HR404 50 (A) to review or appeal under this Act an immigration of- ficer’s determination as to the admissibility of the alien at the port of entry into Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States; or (B) to contest, other than on the basis of an application for withholding of removal under section 241(b)(3) of this Act or under the Convention Against Torture, or an appli- cation for asylum if permitted under section 208 of this Act, any action for removal of the alien. (3) REGULATIONS.—All necessary regulations to implement this subsection shall be promulgated by the Secretary of Home- land Security, in consultation with the Secretary of the Interior and the Secretary of State. The promulgation of such regula- tions shall be considered a foreign affairs function for purposes of section 553(a) of title 5, United States Code. At a minimum, such regulations should include, but not necessarily be limited to— (A) a listing of all countries whose nationals may obtain the waivers provided by this subsection; and (B) any bonding requirements for nationals of some or all of those countries who may present an increased risk of overstays or other potential problems, if different from such requirements otherwise provided by law for nonimmigrant visitors. (4) FACTORS.—In determining whether to grant or continue providing the waiver under this subsection to nationals of any country, the Secretary of Homeland Security, in consultation with the Secretary of the Interior and the Secretary of State, shall consider all factors that the Secretary deems relevant, in- cluding electronic travel authorizations, procedures for report- ing lost and stolen passports, repatriation of aliens, rates of re- fusal for nonimmigrant visitor visas, overstays, exit systems, and information exchange. (5) SUSPENSION.—The Secretary of Homeland Security shall monitor the admission of nonimmigrant visitors to Guam and the Commonwealth of the Northern Mariana Islands, and the Virgin Islands of the United States, under this subsection. If the Secretary determines that such admissions have resulted in an unacceptable number of visitors from a country remaining unlawfully in Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States, unlawfully obtaining entry to other parts of the United States, or seeking withholding of removal or asylum, or that visitors from a country pose a risk to law enforcement or security inter- ests of Guam or the Commonwealth of the Northern Mariana Islands, or of the Virgin Islands of the United States, or of the United States (including the interest in the enforcement of the immigration laws of the United States), the Secretary shall sus- pend the admission of nationals of such country under this sub- section. The Secretary of Homeland Security may in the Sec- retary’s discretion suspend the Guam and Northern Mariana Islands visa waiver program, or the Virgin Islands visa waiver program, at any time, on a country-by-country basis, for other good cause. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00050 Fmt 6659 Sfmt 6603 E:\HR\OC\HR404.XXX HR404 51 (6) ADDITION OF COUNTRIES.—The Governor of Guam and the Governor of the Commonwealth of the Northern Mariana Is- lands, or the Governor of the Virgin Islands of the United States, may request the Secretary of the Interior and the Sec- retary of Homeland Security to add a particular country to the list of countries whose nationals may obtain the waiver pro- vided by this subsection, and the Secretary of Homeland Secu- rity may grant such request after consultation with the Sec- retary of the Interior and the Secretary of State, and may pro- mulgate regulations with respect to the inclusion of that country and any special requirements the Secretary of Homeland Secu- rity, in the Secretary’s sole discretion, may impose prior to al- lowing nationals of that country to obtain the waiver provided by this subsection. (m)(1) The qualifications referred to in section 101(a)(15)(H)(i)(c), with respect to an alien who is coming to the United States to per- form nursing services for a facility, are that the alien— (A) has obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained nursing education or has received nursing education in the United States; (B) has passed an appropriate examination (recognized in regulations promulgated in consultation with the Secretary of Health and Human Services) or has a full and unrestricted li- cense 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 au- thorize the nurse to be employed) governing the place of in- tended 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 em- ployed by the facility. (2)(A) The attestation referred to in section 101(a)(15)(H)(i)(c), with respect to a facility for which an alien will perform services, is an attestation as to the following: (i) The facility meets all the requirements of paragraph (6). (ii) The employment of the alien will not adversely affect the wages and working conditions of registered nurses similarly employed. (iii) The alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility. (iv) The facility has taken and is taking timely and signifi- cant steps designed to recruit and retain sufficient registered nurses who are United States citizens or immigrants who are authorized to perform nursing services, in order to remove as quickly as reasonably possible the dependence of the facility on nonimmigrant registered nurses. (v) There is not a strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a reg- istered nurse employed by the facility within the period begin- ning 90 days before and ending 90 days after the date of filing of any visa petition, and the employment of such an alien is not intended or designed to influence an election for a bar- gaining representative for registered nurses of the facility. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00051 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 52 (vi) At the time of the filing of the petition for registered nurses under section 101(a)(15)(H)(i)(c), notice of the filing has been provided by the facility to the bargaining representative of the registered nurses at the facility or, where there is no such bargaining representative, notice of the filing has been provided to the registered nurses employed at the facility through posting in conspicuous locations. (vii) The facility will not, at any time, employ a number of aliens issued visas or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(c) that exceeds 33 percent of the total number of registered nurses employed by the facility. (viii) The facility will not, with respect to any alien issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(c)— (I) authorize the alien to perform nursing services at any worksite other than a worksite controlled by the facility; or (II) transfer the place of employment of the alien from one worksite to another. Nothing in clause (iv) shall be construed as requiring a facility to have taken significant steps described in such clause before the date of the enactment of the Nursing Relief for Disadvan- taged Areas Act of 1999. A copy of the attestation shall be pro- vided, within 30 days of the date of filing, to registered nurses employed at the facility on the date of filing. (B) For purposes of subparagraph (A)(iv), each of the following shall be considered a significant step reasonably designed to recruit and retain registered nurses: (i) Operating a training program for registered nurses at the facility or financing (or providing participation in) a training program for registered nurses elsewhere. (ii) Providing career development programs and other meth- ods of facilitating health care workers to become registered nurses. (iii) Paying registered nurses wages at a rate higher than currently being paid to registered nurses similarly employed in the geographic area. (iv) Providing reasonable opportunities for meaningful salary advancement by registered nurses. The steps described in this subparagraph shall not be considered to be an exclusive list of the significant steps that may be taken to meet the conditions of subparagraph (A)(iv). Nothing in this sub- paragraph shall require a facility to take more than one step if the facility can demonstrate that taking a second step is not reason- able. (C) Subject to subparagraph (E), an attestation under subpara- graph (A)— (i) shall expire on the date that is the later of— (I) the end of the one-year period beginning on the date of its filing with the Secretary of Labor; or (II) the end of the period of admission under section 101(a)(15)(H)(i)(c) of the last alien with respect to whose admission it was applied (in accordance with clause (ii)); and (ii) shall apply to petitions filed during the one-year period beginning on the date of its filing with the Secretary of Labor VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00052 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 53 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 non- immigrants under section 101(a)(15)(H)(i)(c) and, for each such fa- cility, a copy of the facility’s attestation under subparagraph (A) (and accompanying documentation) and each such petition filed by the facility. (ii) The Secretary of Labor shall establish a process, including reasonable time limits, for the receipt, investigation, and disposi- tion 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 or- ganization (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 reason- able cause to believe that a facility fails to meet conditions attested to. Subject to the time limits established under this clause, this subparagraph shall apply regardless of whether an attestation is expired or unexpired at the time a complaint is filed. (iii) Under such process, the Secretary shall provide, within 180 days after the date such a complaint is filed, for a determination as to whether or not a basis exists to make a finding described in clause (iv). If the Secretary determines that such a basis exists, the Secretary shall provide for notice of such determination to the in- terested 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 misrepre- sentation of material fact in the attestation, the Secretary shall no- tify the Attorney General of such finding and may, in addition, im- pose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per nurse per viola- tion, with the total penalty not to exceed $10,000 per violation) as the Secretary determines to be appropriate. Upon receipt of such notice, the Attorney General shall not approve petitions filed with respect to a facility during a period of at least one year for nurses to be employed by the facility. (v) In addition to the sanctions provided for under clause (iv), if the Secretary of Labor finds, after notice and an opportunity for a hearing, that a facility has violated the condition attested to under subparagraph (A)(iii) (relating to payment of registered nurses at the prevailing wage rate), the Secretary shall order the facility to provide for payment of such amounts of back pay as may be re- quired to comply with such condition. (F)(i) The Secretary of Labor shall impose on a facility filing an attestation under subparagraph (A) a filing fee, in an amount pre- scribed by the Secretary based on the costs of carrying out the Sec- retary’s duties under this subsection, but not exceeding $250. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00053 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 54 (ii) Fees collected under this subparagraph shall be deposited in a fund established for this purpose in the Treasury of the United States. (iii) The collected fees in the fund shall be available to the Sec- retary of Labor, to the extent and in such amounts as may be pro- vided in appropriations Acts, to cover the costs described in clause (i), in addition to any other funds that are available to the Sec- retary to cover such costs. (3) The period of admission of an alien under section 101(a)(15)(H)(i)(c) shall be 3 years. (4) The total number of nonimmigrant visas issued pursuant to petitions granted under section 101(a)(15)(H)(i)(c) in each fiscal year shall not exceed 500. The number of such visas issued for em- ployment in each State in each fiscal year shall not exceed the fol- lowing: (A) For States with populations of less than 9,000,000, based upon the 1990 decennial census of population, 25 visas. (B) For States with populations of 9,000,000 or more, based upon the 1990 decennial census of population, 50 visas. (C) If the total number of visas available under this para- graph for a fiscal year quarter exceeds the number of qualified nonimmigrants who may be issued such visas during those quarters, the visas made available under this paragraph shall be issued without regard to the numerical limitation under subparagraph (A) or (B) of this paragraph during the last fiscal year quarter. (5) A facility that has filed a petition under section 101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing services for the facility— (A) shall provide the nonimmigrant a wage rate and working conditions commensurate with those of nurses similarly em- ployed by the facility; (B) shall require the nonimmigrant to work hours commen- surate with those of nurses similarly employed by the facility; and (C) shall not interfere with the right of the nonimmigrant to join or organize a union. (6) For purposes of this subsection and section 101(a)(15)(H)(i)(c), the term ‘‘facility’’ means a subsection (d) hospital (as defined in section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B))) that meets the following requirements: (A) As of March 31, 1997, the hospital was located in a health professional shortage area (as defined in section 332 of the Public Health Service Act (42 U.S.C. 254e)). (B) Based on its settled cost report filed under title XVIII of the Social Security Act for its cost reporting period beginning during fiscal year 1994— (i) the hospital has not less than 190 licensed acute care beds; (ii) the number of the hospital’s inpatient days for such period which were made up of patients who (for such days) were entitled to benefits under part A of such title is not less than 35 percent of the total number of such hospital’s acute care inpatient days for such period; and VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00054 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 55 (iii) the number of the hospital’s inpatient days for such period which were made up of patients who (for such days) were eligible for medical assistance under a State plan ap- proved under title XIX of the Social Security Act, is not less than 28 percent of the total number of such hospital’s acute care inpatient days for such period. (7) For purposes of paragraph (2)(A)(v), the term ‘‘lay off’’, with respect to a worker— (A) means to cause the worker’s loss of employment, other than through a discharge for inadequate perform- ance, violation of workplace rules, cause, voluntary depar- ture, voluntary retirement, or the expiration of a grant or contract; but (B) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, re- gardless of whether or not the employee accepts the offer. Nothing in this paragraph is intended to limit an employee’s or an employer’s rights under a collective bargaining agree- ment or other employment contract. (n)(1) No alien may be admitted or provided status as an H–1B nonimmigrant in an occupational classification unless the employer has filed with the Secretary of Labor an application stating the fol- lowing: (A) The employer— (i) is offering and will offer during the period of author- ized employment to aliens admitted or provided status as an H–1B nonimmigrant wages that are at least— (I) the actual wage level paid by the employer to all other individuals with similar experience and quali- fications 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 avail- able as of the time of filing the application, and (ii) will provide working conditions for such a non- immigrant that will not adversely affect the working condi- tions 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 em- ployment. (C) The employer, at the time of filing the application— (i) has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer’s employees in the occupational classification and area for which aliens are sought, or (ii) if there is no such bargaining representative, has provided notice of filing in the occupational classification through such methods as physical posting in conspicuous locations at the place of employment or electronic notifica- tion to employees in the occupational classification for which H–1B nonimmigrants are sought. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00055 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 56 (D) The application shall contain a specification of the num- ber of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed. (E)(i) In the case of an application described in clause (ii), the employer did not displace and will not displace a United States worker (as defined in paragraph (4)) employed by the employer within the period beginning 90 days before and end- ing 90 days after the date of filing of any visa petition sup- ported by the application. (ii) An application described in this clause is an application filed on or after the date final regulations are first promul- gated to carry out this subparagraph, and before by an H–1B- dependent employer (as defined in paragraph (3)) or by an em- ployer that has been found, on or after the date of the enact- ment of the American Competitiveness and Workforce Im- provement Act of 1998, under paragraph (2)(C) or (5) to have committed a willful failure or misrepresentation during the 5- year period preceding the filing of the application. An applica- tion is not described in this clause if the only H–1B non- immigrants sought in the application are exempt H–1B non- immigrants. (F) In the case of an application described in subparagraph (E)(ii), the employer will not place the nonimmigrant with an- other employer (regardless of whether or not such other em- ployer is an H–1B-dependent employer) where— (i) the nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by such other employer; and (ii) there are indicia of an employment relationship be- tween the nonimmigrant and such other employer; unless the employer has inquired of the other employer as to whether, and has no knowledge that, within the period begin- ning 90 days before and ending 90 days after the date of the placement of the nonimmigrant with the other employer, the other employer has displaced or intends to displace a United States worker employed by the other employer. (G)(i) In the case of an application described in subparagraph (E)(ii), subject to clause (ii), the employer, prior to filing the ap- plication— (I) has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants under sub- paragraph (A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought; and (II) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought. (ii) The conditions described in clause (i) shall not apply to an application filed with respect to the employment of an H– 1B nonimmigrant who is described in subparagraph (A), (B), or (C) of section 203(b)(1). VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00056 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 57 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 cur- rent 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 employ- ment, and date of need. The Secretary shall make such list avail- able 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 applica- tion is incomplete or obviously inaccurate, the Secretary shall pro- vide the certification described in section 101(a)(15)(H)(i)(b) within 7 days of the date of the filing of the application. The application form shall include a clear statement explaining the liability under subparagraph (F) of a placing employer if the other employer de- scribed in such subparagraph displaces a United States worker as described in such subparagraph. Nothing in subparagraph (G) shall be construed to prohibit an employer from using legitimate selec- tion criteria relevant to the job that are normal or customary to the type of job involved, so long as such criteria are not applied in a discriminatory manner. (2)(A) Subject to paragraph (5)(A), the Secretary shall establish a process for the receipt, investigation, and disposition of com- plaints 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. Com- plaints may be filed by any aggrieved person or organization (in- cluding bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or mis- representation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respec- tively. 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 no- tice of such determination to the interested parties and an oppor- tunity 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)(i) If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(B), (1)(E), or (1)(F), a substantial failure to meet a condition of paragraph (1)(C), (1)(D), or (1)(G)(i)(I), or a misrepresentation of material fact in an application— VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00057 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 58 (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) dur- ing a period of at least 1 year for aliens to be employed by the employer. (ii) If the Secretary finds, after notice and opportunity for a hear- ing, a willful failure to meet a condition of paragraph (1), a willful misrepresentation of material fact in an application, or a violation of clause (iv)— (I) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $5,000 per violation) as the Secretary determines to be appropriate; and (II) the Attorney General shall not approve petitions filed with respect to that employer under section 204 or 214(c) dur- ing a period of at least 2 years for aliens to be employed by the employer. (iii) If the Secretary finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1) or a willful misrepresentation of material fact in an application, in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer within the pe- riod beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the application— (I) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $35,000 per violation) as the Secretary determines to be appropriate; and (II) the Attorney General shall not approve petitions filed with respect to that employer under section 204 or 214(c) dur- ing a period of at least 3 years for aliens to be employed by the employer. (iv) It is a violation of this clause for an employer who has filed an application under this subsection to intimidate, threaten, re- strain, coerce, blacklist, discharge, or in any other manner discrimi- nate against an employee (which term, for purposes of this clause, includes a former employee and an applicant for employment) be- cause the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evi- dences a violation of this subsection, or any rule or regulation per- taining to this subsection, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding con- cerning the employer’s compliance with the requirements of this subsection or any rule or regulation pertaining to this subsection. (v) The Secretary of Labor and the Attorney General shall devise a process under which an H–1B nonimmigrant who files a com- plaint regarding a violation of clause (iv) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00058 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 59 to exceed the maximum period of stay authorized for such non- immigrant classification. (vi)(I) It is a violation of this clause for an employer who has filed an application under this subsection to require an H–1B non- immigrant to pay a penalty for ceasing employment with the em- ployer prior to a date agreed to by the nonimmigrant and the em- ployer. The Secretary shall determine whether a required payment is a penalty (and not liquidated damages) pursuant to relevant State law. (II) It is a violation of this clause for an employer who has filed an application under this subsection to require an alien who is the subject of a petition filed under section 214(c)(1), for which a fee is imposed under section 214(c)(9), to reimburse, or otherwise com- pensate, the employer for part or all of the cost of such fee. It is a violation of this clause for such an employer otherwise to accept such reimbursement or compensation from such an alien. (III) If the Secretary finds, after notice and opportunity for a hearing, that an employer has committed a violation of this clause, the Secretary may impose a civil monetary penalty of $1,000 for each such violation and issue an administrative order requiring the return to the nonimmigrant of any amount paid in violation of this clause, or, if the nonimmigrant cannot be located, requiring pay- ment of any such amount to the general fund of the Treasury. (vii)(I) It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application under this subsection and who places an H–1B nonimmigrant designated as a full-time employee on the petition filed under section 214(c)(1) by the em- ployer with respect to the nonimmigrant, after the nonimmigrant has entered into employment with the employer, in nonproductive status due to a decision by the employer (based on factors such as lack of work), or due to the nonimmigrant’s lack of a permit or li- cense, to fail to pay the nonimmigrant full-time wages in accord- ance with paragraph (1)(A) for all such nonproductive time. (II) It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application under this subsection and who places an H–1B nonimmigrant designated as a part-time em- ployee on the petition filed under section 214(c)(1) by the employer with respect to the nonimmigrant, after the nonimmigrant has en- tered into employment with the employer, in nonproductive status under circumstances described in subclause (I), to fail to pay such a nonimmigrant for such hours as are designated on such petition consistent with the rate of pay identified on such petition. (III) In the case of an H–1B nonimmigrant who has not yet en- tered into employment with an employer who has had approved an application under this subsection, and a petition under section 214(c)(1), with respect to the nonimmigrant, the provisions of sub- clauses (I) and (II) shall apply to the employer beginning 30 days after the date the nonimmigrant first is admitted into the United States pursuant to the petition, or 60 days after the date the non- immigrant becomes eligible to work for the employer (in the case of a nonimmigrant who is present in the United States on the date of the approval of the petition). (IV) This clause does not apply to a failure to pay wages to an H–1B nonimmigrant for nonproductive time due to non-work-re- lated factors, such as the voluntary request of the nonimmigrant VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00059 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 60 for an absence or circumstances rendering the nonimmigrant un- able to work. (V) This clause shall not be construed as prohibiting an employer that is a school or other educational institution from applying to an H–1B nonimmigrant an established salary practice of the employer, under which the employer pays to H–1B nonimmigrants and United States workers in the same occupational classification an annual salary in disbursements over fewer than 12 months, if— (aa) the nonimmigrant agrees to the compressed annual sal- ary payments prior to the commencement of the employment; and (bb) the application of the salary practice to the non- immigrant does not otherwise cause the nonimmigrant to vio- late any condition of the nonimmigrant’s authorization under this Act to remain in the United States. (VI) This clause shall not be construed as superseding clause (viii). (viii) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an application under this subsection to fail to offer to an H–1B nonimmigrant, during the nonimmigrant’s period of authorized employment, benefits and eligibility for bene- fits (including the opportunity to participate in health, life, dis- ability, and other insurance plans; the opportunity to participate in retirement and savings plans; and cash bonuses and noncash com- pensation, such as stock options (whether or not based on perform- ance)) on the same basis, and in accordance with the same criteria, as the employer offers to United States workers. (D) If the Secretary finds, after notice and opportunity for a hear- ing, that an employer has not paid wages at the wage level speci- fied 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 re- quirements of paragraph (1), whether or not a penalty under sub- paragraph (C) has been imposed. (E) If an H–1B-dependent employer places a nonexempt H–1B nonimmigrant with another employer as provided under paragraph (1)(F) and the other employer has displaced or displaces a United States worker employed by such other employer during the period described in such paragraph, such displacement shall be considered for purposes of this paragraph a failure, by the placing employer, to meet a condition specified in an application submitted under paragraph (1); except that the Attorney General may impose a sanction described in subclause (II) of subparagraph (C)(i), (C)(ii), or (C)(iii) only if the Secretary of Labor found that such placing em- ployer— (i) knew or had reason to know of such displacement at the time of the placement of the nonimmigrant with the other em- ployer; or (ii) has been subject to a sanction under this subparagraph based upon a previous placement of an H–1B nonimmigrant with the same other employer. (F) The Secretary may, on a case-by-case basis, subject an em- ployer to random investigations for a period of up to 5 years, begin- ning on the date (on or after the date of the enactment of the American Competitiveness and Workforce Improvement Act of VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00060 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 61 1998) on which the employer is found by the Secretary to have committed a willful failure to meet a condition of paragraph (1) (or has been found under paragraph (5) to have committed a willful failure to meet the condition of paragraph (1)(G)(i)(II)) or to have made a willful misrepresentation of material fact in an application. The preceding sentence shall apply to an employer regardless of whether or not the employer is an H–1B-dependent employer. The authority of the Secretary under this subparagraph shall not be construed to be subject to, or limited by, the requirements of sub- paragraph (A). (G)(i) The Secretary of Labor may initiate an investigation of any employer that employs nonimmigrants described in section 101(a)(15)(H)(i)(b) if the Secretary of Labor has reasonable cause to believe that the employer is not in compliance with this subsection. In the case of an investigation under this clause, the Secretary of Labor (or the acting Secretary in the case of the absence of dis- ability of the Secretary of Labor) shall personally certify that rea- sonable cause exists and shall approve commencement of the inves- tigation. The investigation may be initiated for reasons other than completeness and obvious inaccuracies by the employer in com- plying with this subsection. (ii) If the Secretary of Labor receives specific credible information from a source who is likely to have knowledge of an employer’s practices or employment conditions, or an employer’s compliance with the employer’s labor condition application under paragraph (1), and whose identity is known to the Secretary of Labor, and such information provides reasonable cause to believe that the em- ployer has committed a willful failure to meet a condition of para- graph (1)(A), (1)(B), (1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern or practice of failures to meet such a condition, or has committed a substantial failure to meet such a condition that af- fects multiple employees, the Secretary of Labor may conduct an investigation into the alleged failure or failures. The Secretary of Labor may withhold the identity of the source from the employer, and the source’s identity shall not be subject to disclosure under section 552 of title 5, United States Code. (iii) The Secretary of Labor shall establish a procedure for any person desiring to provide to the Secretary of Labor information de- scribed in clause (ii) that may be used, in whole or in part, as the basis for the commencement of an investigation described in such clause, to provide the information in writing on a form developed and provided by the Secretary of Labor and completed by or on be- half of the person. The person may not be an officer or employee of the Department of Labor, unless the information satisfies the re- quirement of clause (iv)(II) (although an officer or employee of the Department of Labor may complete the form on behalf of the per- son). (iv) Any investigation initiated or approved by the Secretary of Labor under clause (ii) shall be based on information that satisfies the requirements of such clause and that— (I) originates from a source other than an officer or employee of the Department of Labor; or (II) was lawfully obtained by the Secretary of Labor in the course of lawfully conducting another Department of Labor in- vestigation under this Act of any other Act. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00061 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 62 (v) The receipt by the Secretary of Labor of information sub- mitted by an employer to the Attorney General or the Secretary of Labor for purposes of securing the employment of a nonimmigrant described in section 101(a)(15)(H)(i)(b) shall not be considered a re- ceipt of information for purposes of clause (ii). (vi) No investigation described in clause (ii) (or hearing described in clause (viii) based on such investigation) may be conducted with respect to information about a failure to meet a condition described in clause (ii), unless the Secretary of Labor receives the informa- tion not later than 12 months after the date of the alleged failure. (vii) The Secretary of Labor shall provide notice to an employer with respect to whom there is reasonable cause to initiate an inves- tigation described in clauses (i) or (ii), prior to the commencement of an investigation under such clauses, of the intent to conduct an investigation. The notice shall be provided in such a manner, and shall contain sufficient detail, to permit the employer to respond to the allegations before an investigation is commenced. The Sec- retary of Labor is not required to comply with this clause if the Secretary of Labor determines that to do so would interfere with an effort by the Secretary of Labor to secure compliance by the em- ployer with the requirements of this subsection. There shall be no judicial review of a determination by the Secretary of Labor under this clause. (viii) An investigation under clauses (i) or (ii) may be conducted for a period of up to 60 days. If the Secretary of Labor determines after such an investigation that a reasonable basis exists to make a finding that the employer has committed a willful failure to meet a condition of paragraph (1)(A), (1)(B), (1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern or practice of failures to meet such a condition, or has committed a substantial failure to meet such a condition that affects multiple employees, the Secretary of Labor shall provide for notice of such determination to the inter- ested parties and an opportunity for a hearing in accordance with section 556 of title 5, United States Code, within 120 days after the date of the determination. If such a hearing is requested, the Sec- retary of Labor shall make a finding concerning the matter by not later than 120 days after the date of the hearing. (H)(i) Except as provided in clauses (ii) and (iii), a person or enti- ty is considered to have complied with the requirements of this subsection, notwithstanding a technical or procedural failure to meet such requirements, if there was a good faith attempt to com- ply with the requirements. (ii) Clause (i) shall not apply if— (I) the Department of Labor (or another enforcement agency) has explained to the person or entity the basis for the failure; (II) the person or entity has been provided a period of not less than 10 business days (beginning after the date of the ex- planation) within which to correct the failure; and (III) the person or entity has not corrected the failure volun- tarily within such period. (iii) A person or entity that, in the course of an investigation, is found to have violated the prevailing wage requirements set forth in paragraph (1)(A), shall not be assessed fines or other penalties for such violation if the person or entity can establish that the manner in which the prevailing wage was calculated VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00062 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 63 was consistent with recognized industry standards and prac- tices. (iv) Clauses (i) and (iii) shall not apply to a person or entity that has engaged in or is engaging in a pattern or practice of willful violations of this subsection. (I) Nothing in this subsection shall be construed as superseding or preempting any other enforcement-related authority under this Act (such as the authorities under section 274B), or any other Act. (3)(A) For purposes of this subsection, the term ‘‘H–1B-dependent employer’’ means an employer that— (i)(I) has 25 or fewer full-time equivalent employees who are employed in the United States; and (II) employs more than 7 H–1B nonimmigrants; (ii)(I) has at least 26 but not more than 50 full-time equiva- lent employees who are employed in the United States; and (II) employs more than 12 H–1B nonimmigrants; or (iii)(I) has at least 51 full-time equivalent employees who are employed in the United States; and (II) employs H–1B non- immigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees. (B) For purposes of this subsection— (i) the term ‘‘exempt H–1B nonimmigrant’’ means an H–1B nonimmigrant who— (I) receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000; or (II) has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended employ- ment; and (ii) the term nonexempt H–1B nonimmigrant means an H– 1B nonimmigrant who is not an exempt H–1B nonimmigrant. (C) For purposes of subparagraph (A)— (i) in computing the number of full-time equivalent employ- ees and the number of H–1B nonimmigrants, exempt H–1B nonimmigrants shall not be taken into account during the longer of— (I) the 6-month period beginning on the date of the en- actment of the American Competitiveness and Workforce Improvement Act of 1998; or (II) the period beginning on the date of the enactment of the American Competitiveness and Workforce Improve- ment Act of 1998 and ending on the date final regulations are issued to carry out this paragraph; and (ii) any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of the Internal Revenue Code of 1986 shall be treated as a single employer. (4) For purposes of this subsection: (A) The term ‘‘area of employment’’ means the area within normal commuting distance of the worksite or physical location where the work of the H–1B nonimmigrant is or will be per- formed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment. (B) In the case of an application with respect to one or more H–1B nonimmigrants by an employer, the employer is consid- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00063 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 64 ered to ‘‘displace’’ a United States worker from a job if the em- ployer lays off the worker from a job that is essentially the equivalent of the job for which the nonimmigrant or non- immigrants is or are sought. A job shall not be considered to be essentially equivalent of another job unless it involves es- sentially the same responsibilities, was held by a United States worker with substantially equivalent qualifications and experi- ence, and is located in the same area of employment as the other job. (C) The term ‘‘H–1B nonimmigrant’’ means an alien admit- ted or provided status as a nonimmigrant described in section 101(a)(15)(H)(i)(b). (D)(i) The term ‘‘lays off’’, with respect to a worker— (I) means to cause the worker’s loss of employment, other than through a discharge for inadequate perform- ance, violation of workplace rules, cause, voluntary depar- ture, voluntary retirement, or the expiration of a grant or contract (other than a temporary employment contract en- tered into in order to evade a condition described in sub- paragraph (E) or (F) of paragraph (1)); but (II) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under paragraph (1)(F), with either employer de- scribed in such paragraph) at equivalent or higher com- pensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer. (ii) Nothing in this subparagraph is intended to limit an em- ployee’s rights under a collective bargaining agreement or other employment contract. (E) The term ‘‘United States worker’’ means an employee who— (i) is a citizen or national of the United States; or (ii) is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207, is granted asylum under section 208, or is an immigrant oth- erwise authorized, by this Act or by the Attorney General, to be employed. (5)(A) This paragraph shall apply instead of subparagraphs (A) through (E) of paragraph (2) in the case of a violation described in subparagraph (B), but shall not be construed to limit or affect the authority of the Secretary or the Attorney General with respect to any other violation. (B) The Attorney General shall establish a process for the re- ceipt, initial review, and disposition in accordance with this para- graph of complaints respecting an employer’s failure to meet the condition of paragraph (1)(G)(i)(II) or a petitioner’s misrepresenta- tion of material facts with respect to such condition. Complaints may be filed by an aggrieved individual who has submitted a re´sume´ or otherwise applied in a reasonable manner for the job that is the subject of the condition. No proceeding shall be con- ducted under this paragraph on a complaint concerning such a fail- ure or misrepresentation unless the Attorney General determines VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00064 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 65 that the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively. (C) If the Attorney General finds that a complaint has been filed in accordance with subparagraph (B) and there is reasonable cause to believe that such a failure or misrepresentation described in such complaint has occurred, the Attorney General shall initiate binding arbitration proceedings by requesting the Federal Medi- ation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service. The procedure and rules of such Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings. The Attorney Gen- eral shall pay the fee and expenses of the arbitrator. (D)(i) The arbitrator shall make findings respecting whether a failure or misrepresentation described in subparagraph (B) oc- curred. If the arbitrator concludes that failure or misrepresentation was willful, the arbitrator shall make a finding to that effect. The arbitrator may not find such a failure or misrepresentation (or that such a failure or misrepresentation was willful) unless the com- plainant demonstrates such a failure or misrepresentation (or its willful character) by clear and convincing evidence. The arbitrator shall transmit the findings in the form of a written opinion to the parties to the arbitration and the Attorney General. Such findings shall be final and conclusive, and, except as provided in this sub- paragraph, no official or court of the United States shall have power or jurisdiction to review any such findings. (ii) The Attorney General may review and reverse or modify the findings of an arbitrator only on the same bases as an award of an arbitrator may be vacated or modified under section 10 or 11 of title 9, United States Code. (iii) With respect to the findings of an arbitrator, a court may re- view only the actions of the Attorney General under clause (ii) and may set aside such actions only on the grounds described in sub- paragraph (A), (B), or (C) of section 706(a)(2) of title 5, United States Code. Notwithstanding any other provision of law, such judi- cial review may only be brought in an appropriate United States court of appeals. (E) If the Attorney General receives a finding of an arbitrator under this paragraph that an employer has failed to meet the con- dition of paragraph (1)(G)(i)(II) or has misrepresented a material fact with respect to such condition, unless the Attorney General re- verses or modifies the finding under subparagraph (D)(ii)— (i) the Attorney General may impose administrative rem- edies (including civil monetary penalties in an amount not to exceed $1,000 per violation or $5,000 per violation in the case of a willful failure or misrepresentation) as the Attorney Gen- eral determines to be appropriate; and (ii) the Attorney General is authorized to not approve peti- tions filed, with respect to that employer and for aliens to be employed by the employer, under section 204 or 214(c)— (I) during a period of not more than 1 year; or (II) in the case of a willful failure or willful misrepresen- tation, during a period of not more than 2 years. (F) The Attorney General shall not delegate, to any other em- ployee or official of the Department of Justice, any function of the Attorney General under this paragraph, until 60 days after the At- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00065 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 66 torney General has submitted a plan for such delegation to the Committees on the Judiciary of the United States House of Rep- resentatives and the Senate. (o) An alien who has been physically present in the United States shall not be eligible to receive an immigrant visa within ninety days following departure therefrom unless— (1) the alien was maintaining a lawful nonimmigrant status at the time of such departure, or (2) the alien is the spouse or unmarried child of an indi- vidual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who— (A) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigra- tion and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986; (B) entered the United States before May 5, 1988, re- sided in the United States on May 5, 1988, and is not a lawful permanent resident; and (C) applied for benefits under section 301(a) of the Immi- gration Act of 1990. (p)(1) In computing the prevailing wage level for an occupational classification in an area of employment for purposes of subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) in the case of an em- ployee of— (A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965), or a related or af- filiated nonprofit entity; or (B) a nonprofit research organization or a Governmental re- search organization, the prevailing wage level shall only take into account employees at such institutions and organizations in the area of employment. (2) With respect to a professional athlete (as defined in sub- section (a)(5)(A)(iii)(II)) when the job opportunity is covered by pro- fessional sports league rules or regulations, the wage set forth in those rules or regulations shall be considered as not adversely af- fecting the wages of United States workers similarly employed and be considered the prevailing wage. (3) The prevailing wage required to be paid pursuant to sub- sections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) shall be 100 per- cent of the wage determined pursuant to those sections. (4) Where the Secretary of Labor uses, or makes available to em- ployers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level. (q) Any alien admitted under section 101(a)(15)(B) may accept an honorarium payment and associated incidental expenses for a usual academic activity or activities (lasting not longer than 9 days at any single institution), as defined by the Attorney General in VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00066 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 67 consultation with the Secretary of Education, if such payment is of- fered by an institution or organization described in subsection (p)(1) and is made for services conducted for the benefit of that in- stitution or entity and if the alien has not accepted such payment or expenses from more than 5 institutions or organizations in the previous 6-month period. (r) Subsection (a)(5)(C) shall not apply to an alien who seeks to enter the United States for the purpose of performing labor as a nurse who presents to the consular officer (or in the case of an ad- justment of status, the Attorney General) a certified statement from the Commission on Graduates of Foreign Nursing Schools (or an equivalent independent credentialing organization approved for the certification of nurses under subsection (a)(5)(C) by the Attor- ney General in consultation with the Secretary of Health and Human Services) that— (1) the alien has a valid and unrestricted license as a nurse in a State where the alien intends to be employed and such State verifies that the foreign licenses of alien nurses are au- thentic and unencumbered; (2) the alien has passed the National Council Licensure Ex- amination (NCLEX); (3) the alien is a graduate of a nursing program— (A) in which the language of instruction was English; (B) located in a country— (i) designated by such commission not later than 30 days after the date of the enactment of the Nursing Relief for Disadvantaged Areas Act of 1999, based on such commission’s assessment that the quality of nursing education in that country, and the English language proficiency of those who complete such pro- grams in that country, justify the country’s designa- tion; or (ii) designated on the basis of such an assessment by unanimous agreement of such commission and any equivalent credentialing organizations which have been approved under subsection (a)(5)(C) for the cer- tification of nurses under this subsection; and (C)(i) which was in operation on or before the date of the enactment of the Nursing Relief for Disadvantaged Areas Act of 1999; or (ii) has been approved by unanimous agreement of such commission and any equivalent credentialing organizations which have been approved under subsection (a)(5)(C) for the certification of nurses under this subsection. (s) In determining whether an alien described in subsection (a)(4)(C)(i) is inadmissible under subsection (a)(4) or ineligible to receive an immigrant visa or otherwise to adjust to the status of permanent resident by reason of subsection (a)(4), the consular offi- cer or the Attorney General shall not consider any benefits the alien may have received that were authorized under section 501 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1641(c)). (t)(1) No alien may be admitted or provided status as a non- immigrant under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) in an occupational classification unless the em- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00067 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 68 ployer has filed with the Secretary of Labor an attestation stating the following: (A) The employer— (i) is offering and will offer during the period of author- ized employment to aliens admitted or provided status under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) wages that are at least— (I) the actual wage level paid by the employer to all other individuals with similar experience and quali- fications 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 avail- able as of the time of filing the attestation; and (ii) will provide working conditions for such a non- immigrant that will not adversely affect the working condi- tions 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 em- ployment. (C) The employer, at the time of filing the attestation— (i) has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer’s employees in the occupational classification and area for which aliens are sought; or (ii) if there is no such bargaining representative, has provided notice of filing in the occupational classification through such methods as physical posting in conspicuous locations at the place of employment or electronic notifica- tion to employees in the occupational classification for which nonimmigrants under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) are sought. (D) A specification of the number of workers sought, the oc- cupational classification in which the workers will be em- ployed, and wage rate and conditions under which they will be employed. (2)(A) The employer shall make available for public examination, within one working day after the date on which an attestation under this subsection is filed, at the employer’s principal place of business or worksite, a copy of each such attestation (and such ac- companying documents as are necessary). (B)(i) The Secretary of Labor shall compile, on a current basis, a list (by employer and by occupational classification) of the attes- tations filed under this subsection. Such list shall include, with re- spect to each attestation, the wage rate, number of aliens sought, period of intended employment, and date of need. (ii) The Secretary of Labor shall make such list available for pub- lic examination in Washington, D.C. (C) The Secretary of Labor shall review an attestation filed under this subsection only for completeness and obvious inaccuracies. Un- less the Secretary of Labor finds that an attestation is incomplete or obviously inaccurate, the Secretary of Labor shall provide the certification described in section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) within 7 days of the date of the filing of the attes- tation. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00068 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 69 (3)(A) The Secretary of Labor shall establish a process for the re- ceipt, investigation, and disposition of complaints respecting the failure of an employer to meet a condition specified in an attesta- tion submitted under this subsection or misrepresentation by the employer of material facts in such an attestation. Complaints may be filed by any aggrieved person or organization (including bar- gaining representatives). No investigation or hearing shall be con- ducted on a complaint concerning such a failure or misrepresenta- tion unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively. The Sec- retary of Labor shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or mis- representation has occurred. (B) Under the process described in subparagraph (A), the Sec- retary of Labor shall provide, within 30 days after the date a com- plaint is filed, for a determination as to whether or not a reason- able basis exists to make a finding described in subparagraph (C). If the Secretary of Labor determines that such a reasonable basis exists, the Secretary of Labor shall provide for notice of such deter- mination 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 of Labor shall make a finding concerning the matter by not later than 60 days after the date of the hearing. In the case of similar complaints respecting the same applicant, the Secretary of Labor may consolidate the hear- ings under this subparagraph on such complaints. (C)(i) If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(B), a substantial failure to meet a condition of paragraph (1)(C) or (1)(D), or a misrepresentation of material fact in an attestation— (I) the Secretary of Labor shall notify the Secretary of State and the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary of Labor determines to be appropriate; and (II) the Secretary of State or the Secretary of Homeland Se- curity, as appropriate, shall not approve petitions or applica- tions filed with respect to that employer under section 204, 214(c), 101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section 101(a)(15)(E)(iii) during a period of at least 1 year for aliens to be employed by the employer. (ii) If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1), a willful misrepresentation of material fact in an attestation, or a violation of clause (iv)— (I) the Secretary of Labor shall notify the Secretary of State and the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $5,000 per violation as the Secretary of Labor determines to be appropriate; and (II) the Secretary of State or the Secretary of Homeland Se- curity, as appropriate, shall not approve petitions or applica- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00069 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 70 tions filed with respect to that employer under section 204, 214(c), 101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section 101(a)(15)(E)(iii) during a period of at least 2 years for aliens to be employed by the employer. (iii) If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1) or a willful misrepresentation of material fact in an attestation, in the course of which failure or misrepresentation the employer dis- placed a United States worker employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition or application supported by the attestation— (I) the Secretary of Labor shall notify the Secretary of State and the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $35,000 per violation) as the Secretary of Labor determines to be appropriate; and (II) the Secretary of State or the Secretary of Homeland Se- curity, as appropriate, shall not approve petitions or applica- tions filed with respect to that employer under section 204, 214(c), 101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section 101(a)(15)(E)(iii) during a period of at least 3 years for aliens to be employed by the employer. (iv) It is a violation of this clause for an employer who has filed an attestation under this subsection to intimidate, threaten, re- strain, coerce, blacklist, discharge, or in any other manner discrimi- nate against an employee (which term, for purposes of this clause, includes a former employee and an applicant for employment) be- cause the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evi- dences a violation of this subsection, or any rule or regulation per- taining to this subsection, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding con- cerning the employer’s compliance with the requirements of this subsection or any rule or regulation pertaining to this subsection. (v) The Secretary of Labor and the Secretary of Homeland Secu- rity shall devise a process under which a nonimmigrant under sec- tion 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) who files a com- plaint regarding a violation of clause (iv) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such non- immigrant classification. (vi)(I) It is a violation of this clause for an employer who has filed an attestation under this subsection to require a nonimmigrant under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) to pay a penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer. The Secretary of Labor shall determine whether a required payment is a penalty (and not liquidated damages) pursuant to relevant State law. (II) If the Secretary of Labor finds, after notice and opportunity for a hearing, that an employer has committed a violation of this clause, the Secretary of Labor may impose a civil monetary penalty of $1,000 for each such violation and issue an administrative order VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00070 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 71 requiring the return to the nonimmigrant of any amount paid in violation of this clause, or, if the nonimmigrant cannot be located, requiring payment of any such amount to the general fund of the Treasury. (vii)(I) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an attestation under this subsection and who places a nonimmigrant under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) designated as a full-time employee in the attestation, after the nonimmigrant has entered into employment with the employer, in nonproductive status due to a decision by the employer (based on factors such as lack of work), or due to the non- immigrant’s lack of a permit or license, to fail to pay the non- immigrant full-time wages in accordance with paragraph (1)(A) for all such nonproductive time. (II) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an attestation under this subsection and who places a nonimmigrant under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) designated as a part-time employee in the attestation, after the nonimmigrant has entered into employment with the employer, in nonproductive status under circumstances described in subclause (I), to fail to pay such a nonimmigrant for such hours as are designated on the attestation consistent with the rate of pay identified on the attestation. (III) In the case of a nonimmigrant under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) who has not yet en- tered into employment with an employer who has had approved an attestation under this subsection with respect to the non- immigrant, the provisions of subclauses (I) and (II) shall apply to the employer beginning 30 days after the date the nonimmigrant first is admitted into the United States, or 60 days after the date the nonimmigrant becomes eligible to work for the employer in the case of a nonimmigrant who is present in the United States on the date of the approval of the attestation filed with the Secretary of Labor. (IV) This clause does not apply to a failure to pay wages to a nonimmigrant under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) for nonproductive time due to non-work-related factors, such as the voluntary request of the nonimmigrant for an absence or circumstances rendering the nonimmigrant unable to work. (V) This clause shall not be construed as prohibiting an employer that is a school or other educational institution from applying to a nonimmigrant under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) an established salary practice of the employer, under which the employer pays to nonimmigrants under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) and United States workers in the same occupational classification an annual salary in disbursements over fewer than 12 months, if— (aa) the nonimmigrant agrees to the compressed annual sal- ary payments prior to the commencement of the employment; and (bb) the application of the salary practice to the non- immigrant does not otherwise cause the nonimmigrant to vio- late any condition of the nonimmigrant’s authorization under this Act to remain in the United States. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00071 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 72 (VI) This clause shall not be construed as superseding clause (viii). (viii) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an attestation under this subsection to fail to offer to a nonimmigrant under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii), during the nonimmigrant’s period of au- thorized employment, benefits and eligibility for benefits (including the opportunity to participate in health, life, disability, and other insurance plans; the opportunity to participate in retirement and savings plans; and cash bonuses and non-cash compensation, such as stock options (whether or not based on performance)) on the same basis, and in accordance with the same criteria, as the em- ployer offers to United States workers. (D) If the Secretary of Labor finds, after notice and opportunity for a hearing, that an employer has not paid wages at the wage level specified in the attestation and required under paragraph (1), the Secretary of Labor shall order the employer to provide for pay- ment of such amounts of back pay as may be required to comply with the requirements of paragraph (1), whether or not a penalty under subparagraph (C) has been imposed. (E) The Secretary of Labor may, on a case-by-case basis, subject an employer to random investigations for a period of up to 5 years, beginning on the date on which the employer is found by the Sec- retary of Labor to have committed a willful failure to meet a condi- tion of paragraph (1) or to have made a willful misrepresentation of material fact in an attestation. The authority of the Secretary of Labor under this subparagraph shall not be construed to be subject to, or limited by, the requirements of subparagraph (A). (F) Nothing in this subsection shall be construed as superseding or preempting any other enforcement-related authority under this Act (such as the authorities under section 274B), or any other Act. (4) For purposes of this subsection: (A) The term ‘‘area of employment’’ means the area within normal commuting distance of the worksite or physical location where the work of the nonimmigrant under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) is or will be per- formed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment. (B) In the case of an attestation with respect to one or more nonimmigrants under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) by an employer, the employer is considered to ‘‘displace’’ a United States worker from a job if the employer lays off the worker from a job that is essentially the equivalent of the job for which the nonimmigrant or nonimmigrants is or are sought. A job shall not be considered to be essentially equivalent of another job unless it involves essentially the same responsibilities, was held by a United States worker with substantially equivalent qualifications and experience, and is located in the same area of employment as the other job. (C)(i) The term ‘‘lays off’’, with respect to a worker— (I) means to cause the worker’s loss of employment, other than through a discharge for inadequate perform- ance, violation of workplace rules, cause, voluntary depar- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00072 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 73 ture, voluntary retirement, or the expiration of a grant or contract; but (II) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, re- gardless of whether or not the employee accepts the offer. (ii) Nothing in this subparagraph is intended to limit an em- ployee’s rights under a collective bargaining agreement or other employment contract. (D) The term ‘‘United States worker’’ means an employee who— (i) is a citizen or national of the United States; or (ii) is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207 of this title, is granted asylum under section 208, or is an im- migrant otherwise authorized, by this Act or by the Sec- retary of Homeland Security, to be employed. (t)(1) Except as provided in paragraph (2), no person admitted under section 101(a)(15)(Q)(ii)(I), or acquiring such status after ad- mission, shall be eligible to apply for nonimmigrant status, an im- migrant visa, or permanent residence under this Act until it is es- tablished that such person has resided and been physically present in the person’s country of nationality or last residence for an aggre- gate of at least 2 years following departure from the United States. (2) The Secretary of Homeland Security may waive the require- ment of such 2-year foreign residence abroad if the Secretary deter- mines that— (A) departure from the United States would impose excep- tional hardship upon the alien’s spouse or child (if such spouse or child is a citizen of the United States or an alien lawfully admitted for permanent residence); or (B) the admission of the alien is in the public interest or the national interest of the United States. * * * * * * * ADMISSION OF NONIMMIGRANTS SEC. 214. (a)(1) The admission to the United States of any alien as a nonimmigrant shall be for such time and under such condi- tions as the Attorney General may by regulations prescribe, includ- ing when he deems necessary the giving of a bond with sufficient surety in such sum and containing such conditions as the Attorney General shall prescribe, to insure that at the expiration of such time or upon failure to maintain the status under which he was ad- mitted, or to maintain any status subsequently acquired under sec- tion 248, such alien will depart from the United States. No alien admitted to øGuam or the Commonwealth of the Northern Mariana Islands¿ Guam or the Commonwealth of the Northern Mariana Is- lands, or the Virgin Islands of the United States without a visa pur- suant to section 212(l) may be authorized to enter or stay in the United States other than in øGuam or the Commonwealth of the Northern Mariana Islands¿ Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00073 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 74 States or to remain in øGuam or the Commonwealth of the North- ern Mariana Islands¿ Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States for a period exceeding 45 days from date of admission to øGuam or the Commonwealth of the Northern Mariana Islands¿ Guam or the Commonwealth of the Northern Mariana Islands, or the Virgin Is- lands of the United States. No alien admitted to the United States without a visa pursuant to section 217 may be authorized to re- main in the United States as a nonimmigrant visitor for a period exceeding 90 days from the date of admission. (2)(A) The period of authorized status as a nonimmigrant de- scribed in section 101(a)(15)(O) shall be for such period as the At- torney General may specify in order to provide for the event (or events) for which the nonimmigrant is admitted. (B) The period of authorized status as a nonimmigrant described in section 101(a)(15)(P) shall be for such period as the Attorney General may specify in order to provide for the competition, event, or performance for which the nonimmigrant is admitted. In the case of nonimmigrants admitted as individual athletes under sec- tion 101(a)(15)(P), the period of authorized status may be for an initial period (not to exceed 5 years) during which the non- immigrant will perform as an athlete and such period may be ex- tended by the Attorney General for an additional period of up to 5 years. (b) Every alien (other than a nonimmigrant described in subpara- graph (L) or (V) of section 101(a)(15), and other than a non- immigrant described in any provision of section 101(a)(15)(H)(i) ex- cept subclause (b1) of such section) shall be presumed to be an im- migrant until he establishes to the satisfaction of the consular offi- cer, at the time of application for a visa, and the immigration offi- cers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15). An alien who is an officer or employee of any foreign government or of any inter- national organization entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act, or an alien who is the attendant, servant, employee, or member of the immediate family of any such alien shall not be entitled to apply for or receive an immigrant visa, or to enter the United States as an immigrant unless he executes a written waiver in the same form and substance as is prescribed by section 247(b). (c)(1) The question of importing any alien as a nonimmigrant under subparagraph (H), (L), (O), or (P)(i) of section 101(a)(15) (ex- cluding nonimmigrants under section 101(a)(15)(H)(i)(b1)) in any specific case or specific cases shall be determined by the Attorney General, after consultation with appropriate agencies of the Gov- ernment, upon petition of the importing employer. Such petition shall be made and approved before the visa is granted. The petition shall be in such form and contain such information as the Attorney General shall prescribe. The approval of such a petition shall not, of itself, be construed as establishing that the alien is a non- immigrant. For purposes of this subsection with respect to non- immigrants described in section 101(a)(15)(H)(ii)(a), the term ‘‘ap- propriate agencies of Government’’ means the Department of Labor and includes the Department of Agriculture. The provisions of sec- VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00074 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 75 tion 218 shall apply to the question of importing any alien as a nonimmigrant under section 101(a)(15)(H)(ii)(a). (2)(A) The Attorney General shall provide for a procedure under which an importing employer which meets requirements estab- lished by the Attorney General may file a blanket petition to im- port aliens as nonimmigrants described in section 101(a)(15)(L) in- stead of filing individual petitions under paragraph (1) to import such aliens. Such procedure shall permit the expedited processing of visas for admission of aliens covered under such a petition. (B) For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity involving specialized knowledge with re- spect to a company if the alien has a special knowledge of the com- pany product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. (C) The Attorney General shall provide a process for reviewing and acting upon petitions under this subsection with respect to nonimmigrants described in section 101(a)(15)(L) within 30 days after the date a completed petition has been filed. (D) The period of authorized admission for— (i) a nonimmigrant admitted to render services in a manage- rial or executive capacity under section 101(a)(15)(L) shall not exceed 7 years, or (ii) a nonimmigrant admitted to render services in a capacity that involves specialized knowledge under section 101(a)(15)(L) shall not exceed 5 years. (E) In the case of an alien spouse admitted under section 101(a)(15)(L), who is accompanying or following to join a principal alien admitted under such section, the Attorney General shall au- thorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘‘employment authorized’’ endorsement or other appropriate work permit. (F) An alien who will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 101(a)(15)(L) and will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, sub- sidiary, or parent shall not be eligible for classification under sec- tion 101(a)(15)(L) if— (i) the alien will be controlled and supervised principally by such unaffiliated employer; or (ii) the placement of the alien at the worksite of the unaffili- ated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning em- ployer is necessary. (3) The Attorney General shall approve a petition— (A) with respect to a nonimmigrant described in section 101(a)(15)(O)(i) only after consultation in accordance with paragraph (6) or, with respect to aliens seeking entry for a mo- tion picture or television production, after consultation with the appropriate union representing the alien’s occupational peers and a management organization in the area of the alien’s ability, or VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00075 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 76 (B) with respect to a nonimmigrant described in section 101(a)(15)(O)(ii) after consultation in accordance with para- graph (6) or, in the case of such an alien seeking entry for a motion picture or television production, after consultation with such a labor organization and a management organization in the area of the alien’s ability. In the case of an alien seeking entry for a motion picture or tele- vision production, (i) any opinion under the previous sentence shall only be advisory, (ii) any such opinion that recommends denial must be in writing, (iii) in making the decision the Attorney Gen- eral shall consider the exigencies and scheduling of the production, and (iv) the Attorney General shall append to the decision any such opinion. The Attorney General shall provide by regulation for the waiver of the consultation requirement under subparagraph (A) in the case of aliens who have been admitted as nonimmigrants under section 101(a)(15)(O)(i) because of extraordinary ability in the arts and who seek readmission to perform similar services within 2 years after the date of a consultation under such subparagraph. Not later than 5 days after the date such a waiver is provided, the Attorney General shall forward a copy of the petition and all sup- porting documentation to the national office of an appropriate labor organization. (4)(A) For purposes of section 101(a)(15)(P)(i)(a), an alien is de- scribed in this subparagraph if the alien— (i)(I) performs as an athlete, individually or as part of a group or team, at an internationally recognized level of per- formance; (II) is a professional athlete, as defined in section 204(i)(2); (III) performs as an athlete, or as a coach, as part of a team or franchise that is located in the United States and a member of a foreign league or association of 15 or more amateur sports teams, if— (aa) the foreign league or association is the highest level of amateur performance of that sport in the relevant for- eign country; (bb) participation in such league or association renders players ineligible, whether on a temporary or permanent basis, to earn a scholarship in, or participate in, that sport at a college or university in the United States under the rules of the National Collegiate Athletic Association; and (cc) a significant number of the individuals who play in such league or association are drafted by a major sports league or a minor league affiliate of such a sports league; or (IV) is a professional athlete or amateur athlete who per- forms individually or as part of a group in a theatrical ice skat- ing production; and (ii) seeks to enter the United States temporarily and solely for the purpose of performing— (I) as such an athlete with respect to a specific athletic competition; or (II) in the case of an individual described in clause (i)(IV), in a specific theatrical ice skating production or tour. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00076 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 77 (B)(i) For purposes of section 101(a)(15)(P)(i)(b), an alien is de- scribed in this subparagraph if the alien— (I) performs with or is an integral and essential part of the performance of an entertainment group that has (except as provided in clause (ii)) been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time, (II) in the case of a performer or entertainer, except as pro- vided in clause (iii), has had a sustained and substantial rela- tionship with that group (ordinarily for at least one year) and provides functions integral to the performance of the group, and (III) seeks to enter the United States temporarily and solely for the purpose of performing as such a performer or enter- tainer or as an integral and essential part of a performance. (ii) In the case of an entertainment group that is recognized na- tionally as being outstanding in its discipline for a sustained and substantial period of time, the Attorney General may, in consider- ation of special circumstances, waive the international recognition requirement of clause (i)(I). (iii)(I) The one-year relationship requirement of clause (i)(II) shall not apply to 25 percent of the performers and entertainers in a group. (II) The Attorney General may waive such one-year relationship requirement for an alien who because of illness or unanticipated and exigent circumstances replaces an essential member of the group and for an alien who augments the group by performing a critical role. (iv) The requirements of subclauses (I) and (II) of clause (i) shall not apply to alien circus personnel who perform as part of a circus or circus group or who constitute an integral and essential part of the performance of such circus or circus group, but only if such per- sonnel are entering the United States to join a circus that has been recognized nationally as outstanding for a sustained and substan- tial period of time or as part of such a circus. (C) A person may petition the Attorney General for classification of an alien as a nonimmigrant under section 101(a)(15)(P). (D) The Attorney General shall approve petitions under this sub- section with respect to nonimmigrants described in clause (i) or (iii) of section 101(a)(15)(P) only after consultation in accordance with paragraph (6). (E) The Attorney General shall approve petitions under this sub- section for nonimmigrants described in section 101(a)(15)(P)(ii) only after consultation with labor organizations representing artists and entertainers in the United States. (F)(i) No nonimmigrant visa under section 101(a)(15)(P)(i)(a) shall be issued to any alien who is a national of a country that is a state sponsor of international terrorism unless the Secretary of State determines, in consultation with the Secretary of Homeland Security and the heads of other appropriate United States agen- cies, that such alien does not pose a threat to the safety, national security, or national interest of the United States. In making a de- termination under this subparagraph, the Secretary of State shall apply standards developed by the Secretary of State, in consulta- tion with the Secretary of Homeland Security and the heads of VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00077 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 78 other appropriate United States agencies, that are applicable to the nationals of such states. (ii) In this subparagraph, the term ‘‘state sponsor of international terrorism’’ means any country the government of which has been determined by the Secretary of State under any of the laws speci- fied in clause (iii) to have repeatedly provided support for acts of international terrorism. (iii) The laws specified in this clause are the following: (I) Section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) (or successor statute). (II) Section 40(d) of the Arms Export Control Act (22 U.S.C. 2780(d)). (III) Section 620A(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2371(a)). (G) The Secretary of Homeland Security shall permit a petition under this subsection to seek classification of more than 1 alien as a nonimmigrant under section 101(a)(15)(P)(i)(a). (H) The Secretary of Homeland Security shall permit an athlete, or the employer of an athlete, to seek admission to the United States for such athlete under a provision of this Act other than sec- tion 101(a)(15)(P)(i) if the athlete is eligible under such other provi- sion. (5)(A) In the case of an alien who is provided nonimmigrant sta- tus under section 101(a)(15)(H)(i)(b) or 101(a)(15)(H)(ii)(b) and who is dismissed from employment by the employer before the end of the period of authorized admission, the employer shall be liable for the reasonable costs of return transportation of the alien abroad. (B) In the case of an alien who is admitted to the United States in nonimmigrant status under section 101(a)(15)(O) or 101(a)(15)(P) and whose employment terminates for reasons other than vol- untary resignation, the employer whose offer of employment formed the basis of such nonimmigrant status and the petitioner are jointly and severally liable for the reasonable cost of return transportation of the alien abroad. The petitioner shall provide as- surance satisfactory to the Attorney General that the reasonable cost of that transportation will be provided. (6)(A)(i) To meet the consultation requirement of paragraph (3)(A) in the case of a petition for a nonimmigrant described in sec- tion 101(a)(15)(O)(i) (other than with respect to aliens seeking entry for a motion picture or television production), the petitioner shall submit with the petition an advisory opinion from a peer group (or other person or persons of its choosing, which may in- clude a labor organization) with expertise in the specific field in- volved. (ii) To meet the consultation requirement of paragraph (3)(B) in the case of a petition for a nonimmigrant described in section 101(a)(15)(O)(ii) (other than with respect to aliens seeking entry for a motion picture or television production), the petitioner shall sub- mit with the petition an advisory opinion from a labor organization with expertise in the skill area involved. (iii) To meet the consultation requirement of paragraph (4)(D) in the case of a petition for a nonimmigrant described in section 101(a)(15)(P)(i) or 101(a)(15)(P)(iii), the petitioner shall submit with the petition an advisory opinion from a labor organization with ex- pertise in the specific field of athletics or entertainment involved. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00078 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 79 (B) To meet the consultation requirements of subparagraph (A), unless the petitioner submits with the petition an advisory opinion from an appropriate labor organization, the Attorney General shall forward a copy of the petition and all supporting documentation to the national office of an appropriate labor organization within 5 days of the date of receipt of the petition. If there is a collective bargaining representative of an employer’s employees in the occu- pational classification for which the alien is being sought, that rep- resentative shall be the appropriate labor organization. (C) In those cases in which a petitioner described in subpara- graph (A) establishes that an appropriate peer group (including a labor organization) does not exist, the Attorney General shall adju- dicate the petition without requiring an advisory opinion. (D) Any person or organization receiving a copy of a petition de- scribed in subparagraph (A) and supporting documents shall have no more than 15 days following the date of receipt of such docu- ments within which to submit a written advisory opinion or com- ment or to provide a letter of no objection. Once the 15-day period has expired and the petitioner has had an opportunity, where ap- propriate, to supply rebuttal evidence, the Attorney General shall adjudicate such petition in no more than 14 days. The Attorney General may shorten any specified time period for emergency rea- sons if no unreasonable burden would be thus imposed on any par- ticipant in the process. (E)(i) The Attorney General shall establish by regulation expe- dited consultation procedures in the case of nonimmigrant artists or entertainers described in section 101(a)(15)(O) or 101(a)(15)(P) to accommodate the exigencies and scheduling of a given production or event. (ii) The Attorney General shall establish by regulation expedited consultation procedures in the case of nonimmigrant athletes de- scribed in section 101(a)(15)(O)(i) or 101(a)(15)(P)(i) in the case of emergency circumstances (including trades during a season). (F) No consultation required under this subsection by the Attor- ney General with a nongovernmental entity shall be construed as permitting the Attorney General to delegate any authority under this subsection to such an entity. The Attorney General shall give such weight to advisory opinions provided under this section as the Attorney General determines, in his sole discretion, to be appro- priate. (7) If a petition is filed and denied under this subsection, the At- torney General shall notify the petitioner of the determination and the reasons for the denial and of the process by which the peti- tioner may appeal the determination. (8) The Attorney General shall submit annually to the Commit- tees on the Judiciary of the House of Representatives and of the Senate a report describing, with respect to petitions under each subcategory of subparagraphs (H), (O), (P), and (Q) of section 101(a)(15) the following: (A) The number of such petitions which have been filed. (B) The number of such petitions which have been approved and the number of workers (by occupation) included in such approved petitions. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00079 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 80 (C) The number of such petitions which have been denied and the number of workers (by occupation) requested in such denied petitions. (D) The number of such petitions which have been with- drawn. (E) The number of such petitions which are awaiting final action. (9)(A) The Attorney General shall impose a fee on an employer (excluding any employer that is a primary or secondary education institution, an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a), a nonprofit entity related to or affiliated with any such institution, a nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution, a nonprofit research organization, or a governmental research organi- zation) filing before a petition under paragraph (1)— (i) initially to grant an alien nonimmigrant status described in section 101(a)(15)(H)(i)(b); (ii) to extend the stay of an alien having such status (unless the employer previously has obtained an extension for such alien); or (iii) to obtain authorization for an alien having such status to change employers. (B) The amount of the fee shall be $1,500 for each such petition except that the fee shall be half the amount for each such petition by any employer with not more than 25 full-time equivalent em- ployees who are employed in the United States (determined by in- cluding any affiliate or subsidiary of such employer). (C) Fees collected under this paragraph shall be deposited in the Treasury in accordance with section 286(s). (10) An amended H–1B petition shall not be required where the petitioning employer is involved in a corporate restruc- turing, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the in- terests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner. (11)(A) Subject to subparagraph (B), the Secretary of Homeland Security or the Secretary of State, as appropriate, shall impose a fee on an employer who has filed an attestation described in section 212(t)— (i) in order that an alien may be initially granted non- immigrant status described in section 101(a)(15)(H)(i)(b1); or (ii) in order to satisfy the requirement of the second sentence of subsection (g)(8)(C) for an alien having such status to obtain certain extensions of stay. (B) The amount of the fee shall be the same as the amount im- posed by the Secretary of Homeland Security under paragraph (9), except that if such paragraph does not authorize such Secretary to impose any fee, no fee shall be imposed under this paragraph. (C) Fees collected under this paragraph shall be deposited in the Treasury in accordance with section 286(s). (12)(A) In addition to any other fees authorized by law, the Sec- retary of Homeland Security shall impose a fraud prevention and detection fee on an employer filing a petition under paragraph (1)— VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00080 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 81 (i) initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15); or (ii) to obtain authorization for an alien having such status to change employers. (B) In addition to any other fees authorized by law, the Secretary of State shall impose a fraud prevention and detection fee on an alien filing an application abroad for a visa authorizing admission to the United States as a nonimmigrant described in section 101(a)(15)(L), if the alien is covered under a blanket petition de- scribed in paragraph (2)(A). (C) The amount of the fee imposed under subparagraph (A) or (B) shall be $500. (D) The fee imposed under subparagraph (A) or (B) shall only apply to principal aliens and not to the spouses or children who are accompanying or following to join such principal aliens. (E) Fees collected under this paragraph shall be deposited in the Treasury in accordance with section 286(v). (13)(A) In addition to any other fees authorized by law, the Sec- retary of Homeland Security shall impose a fraud prevention and detection fee on an employer filing a petition under paragraph (1) for nonimmigrant workers described in section 101(a)(15)(H)(ii)(b). (B) The amount of the fee imposed under subparagraph (A) shall be $150. (14)(A) If the Secretary of Homeland Security finds, after notice and an opportunity for a hearing, a substantial failure to meet any of the conditions of the petition to admit or otherwise provide sta- tus to a nonimmigrant worker under section 101(a)(15)(H)(ii)(b) or a willful misrepresentation of a material fact in such petition— (i) the Secretary of Homeland Security may, in addition to any other remedy authorized by law, impose such administra- tive remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as the Secretary of Home- land Security determines to be appropriate; and (ii) the Secretary of Homeland Security may deny petitions filed with respect to that employer under section 204 or para- graph (1) of this subsection during a period of at least 1 year but not more than 5 years for aliens to be employed by the em- ployer. (B) The Secretary of Homeland Security may delegate to the Sec- retary of Labor, with the agreement of the Secretary of Labor, any of the authority given to the Secretary of Homeland Security under subparagraph (A)(i). (C) In determining the level of penalties to be assessed under subparagraph (A), the highest penalties shall be reserved for will- ful failures to meet any of the conditions of the petition that in- volve harm to United States workers. (D) In this paragraph, the term ‘‘substantial failure’’ means the willful failure to comply with the requirements of this section that constitutes a significant deviation from the terms and conditions of a petition. (d)(1) A visa shall not be issued under the provisions of section 101(a)(15)(K)(i) until the consular officer has received a petition filed in the United States by the fiance´e or fiance´ of the applying alien and approved by the Secretary of Homeland Security. The pe- tition shall be in such form and contain such information as the VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00081 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 82 Secretary of Homeland Security shall, by regulation, prescribe. Such information shall include information on any criminal convic- tions of the petitioner for any specified crime described in para- graph (3)(B) and information on any permanent protection or re- straining order issued against the petitioner related to any speci- fied crime described in paragraph (3)(B)(i). It shall be approved only after satisfactory evidence is submitted by the petitioner to es- tablish that the parties have previously met in person within 2 years before the date of filing the petition, have a bona fide inten- tion to marry, and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien’s arrival, except that the Secretary of Home- land Security in his discretion may waive the requirement that the parties have previously met in person. In the event the marriage with the petitioner does not occur within three months after the admission of the said alien and minor children, they shall be re- quired to depart from the United States and upon failure to do so shall be removed in accordance with sections 240 and 241. (2)(A) Subject to subparagraphs (B) and (C), the Secretary of Homeland Security may not approve a petition under paragraph (1) unless the Secretary has verified that— (i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more ap- plying aliens; and (ii) if the petitioner has had such a petition previously ap- proved, 2 years have elapsed since the filing of such previously approved petition. (B) The Secretary of Homeland Security may, in the Secretary’s discretion, waive the limitations in subparagraph (A) if justification exists for such a waiver. Except in extraordinary circumstances and subject to subparagraph (C), such a waiver shall not be grant- ed if the petitioner has a record of violent criminal offenses against a person or persons. (C)(i) The Secretary of Homeland Security is not limited by the criminal court record and shall grant a waiver of the condition de- scribed in the second sentence of subparagraph (B) in the case of a petitioner described in clause (ii). (ii) A petitioner described in this clause is a petitioner who has been battered or subjected to extreme cruelty and who is or was not the primary perpetrator of violence in the relationship upon a determination that— (I) the petitioner was acting in self-defense; (II) the petitioner was found to have violated a protection order intended to protect the petitioner; or (III) the petitioner committed, was arrested for, was con- victed of, or pled guilty to committing a crime that did not re- sult in serious bodily injury and where there was a connection between the crime and the petitioner’s having been battered or subjected to extreme cruelty. (iii) In acting on applications under this subparagraph, the Sec- retary of Homeland Security shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Secretary. (3) In this subsection: VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00082 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 83 (A) The terms ‘‘domestic violence’’, ‘‘sexual assault’’, ‘‘child abuse and neglect’’, ‘‘dating violence’’, ‘‘elder abuse’’, and ‘‘stalk- ing’’ have the meaning given such terms in section 3 of the Vio- lence Against Women and Department of Justice Reauthoriza- tion Act of 2005. (B) The term ‘‘specified crime’’ means the following: (i) Domestic violence, sexual assault, child abuse and ne- glect, dating violence, elder abuse, stalking, or an attempt to commit any such crime. (ii) Homicide, murder, manslaughter, rape, abusive sex- ual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of the crimes described in this clause. (iii) At least three convictions for crimes relating to a controlled substance or alcohol not arising from a single act. (e) (1) An alien who is a citizen of Canada or Mexico, and the spouse and children of any such alien if accompanying or following to join such alien, who seeks to enter the United States under and pursu- ant to the provisions of Section D of Annex 16–A of the USMCA (as defined in section 3 of the United States-Mexico-Canada Agree- ment Implementation Act) to engage in business activities at a pro- fessional level as provided for in such Annex, may be admitted for such purpose under regulations of the Attorney General promul- gated after consultation with the Secretaries of State and Labor. For purposes of this Act, including the issuance of entry documents and the application of subsection (b), such alien shall be treated as if seeking classification, or classifiable, as a nonimmigrant under section 101(a)(15). For purposes of this paragraph, the term ‘‘citizen of Mexico’’ means ‘‘citizen’’ as defined in article 16.1 of the USMCA. (2) In the case of an alien spouse admitted under section 101(a)(15)(E), who is accompanying or following to join a principal alien admitted under such section, the Attorney General shall au- thorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘‘employment authorized’’ endorsement or other appropriate work permit. (f)(1) Except as provided in paragraph (3), no alien shall be enti- tled to nonimmigrant status described in section 101(a)(15)(D) if the alien intends to land for the purpose of performing service on board a vessel of the United States (as defined in section 2101(46) of title 46, United States Code) or on an aircraft of an air carrier (as defined in section 40102(a)(2) of title 49, United States Code) during a labor dispute where there is a strike or lockout in the bar- gaining unit of the employer in which the alien intends to perform such service. (2) An alien described in paragraph (1)— (A) may not be paroled into the United States pursuant to section 212(d)(5) unless the Attorney General determines that the parole of such alien is necessary to protect the national se- curity of the United States; and (B) shall be considered not to be a bona fide crewman for purposes of section 252(b). VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00083 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 84 (3) Paragraph (1) shall not apply to an alien if the air carrier or owner or operator of such vessel that employs the alien provides documentation that satisfies the Attorney General that the alien— (A) has been an employee of such employer for a period of not less than 1 year preceding the date that a strike or lawful lockout commenced; (B) has served as a qualified crewman for such employer at least once in each of 3 months during the 12-month period pre- ceding such date; and (C) shall continue to provide the same services that such alien provided as such a crewman. (g)(1) The total number of aliens who may be issued visas or oth- erwise provided nonimmigrant status during any fiscal year (begin- ning with fiscal year 1992)— (A) under section 101(a)(15)(H)(i)(b), may not exceed— (i) 65,000 in each fiscal year before fiscal year 1999; (ii) 115,000 in fiscal year 1999; (iii) 115,000 in fiscal year 2000; (iv) 195,000 in fiscal year 2001; (v) 195,000 in fiscal year 2002; (vi) 195,000 in fiscal year 2003; and (vii) 65,000 in each succeeding fiscal year; or (B) under section 101(a)(15)(H)(ii)(b) may not exceed 66,000. (2) The numerical limitations of paragraph (1) shall only apply to principal aliens and not to the spouses or children of such aliens. (3) Aliens who are subject to the numerical limitations of para- graph (1) shall be issued visas (or otherwise provided non- immigrant status) in the order in which petitions are filed for such visas or status. If an alien who was issued a visa or otherwise pro- vided nonimmigrant status and counted against the numerical lim- itations of paragraph (1) is found to have been issued such visa or otherwise provided such status by fraud or willfully misrepre- senting a material fact and such visa or nonimmigrant status is re- voked, then one number shall be restored to the total number of aliens who may be issued visas or otherwise provided such status under the numerical limitations of paragraph (1) in the fiscal year in which the petition is revoked, regardless of the fiscal year in which the petition was approved. (4) In the case of a nonimmigrant described in section 101(a)(15)(H)(i)(b), the period of authorized admission as such a nonimmigrant may not exceed 6 years. (5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who— (A) is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; (B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization; or (C) has earned a master’s or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00084 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 85 until the number of aliens who are exempted from such numer- ical limitation during such year exceeds 20,000. (6) Any alien who ceases to be employed by an employer de- scribed in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not pre- viously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5). (7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), to- ward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligi- ble for a full 6 years of authorized admission at the time the peti- tion is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once. (8)(A) The agreements referred to in section 101(a)(15)(H)(i)(b1) are— (i) the United States-Chile Free Trade Agreement; and (ii) the United States-Singapore Free Trade Agreement. (B)(i) The Secretary of Homeland Security shall establish annual numerical limitations on approvals of initial applications by aliens for admission under section 101(a)(15)(H)(i)(b1). (ii) The annual numerical limitations described in clause (i) shall not exceed— (I) 1,400 for nationals of Chile (as defined in article 14.9 of the United States-Chile Free Trade Agreement) for any fiscal year; and (II) 5,400 for nationals of Singapore (as defined in Annex 1A of the United States-Singapore Free Trade Agreement) for any fiscal year. (iii) The annual numerical limitations described in clause (i) shall only apply to principal aliens and not to the spouses or children of such aliens. (iv) The annual numerical limitation described in paragraph (1)(A) is reduced by the amount of the annual numerical limita- tions established under clause (i). However, if a numerical limita- tion established under clause (i) has not been exhausted at the end of a given fiscal year, the Secretary of Homeland Security shall ad- just upwards the numerical limitation in paragraph (1)(A) for that fiscal year by the amount remaining in the numerical limitation under clause (i). Visas under section 101(a)(15)(H)(i)(b) may be issued pursuant to such adjustment within the first 45 days of the next fiscal year to aliens who had applied for such visas during the fiscal year for which the adjustment was made. (C) The period of authorized admission as a nonimmigrant under section 101(a)(15)(H)(i)(b1) shall be 1 year, and may be extended, but only in 1-year increments. After every second extension, the next following extension shall not be granted unless the Secretary of Labor had determined and certified to the Secretary of Home- land Security and the Secretary of State that the intending em- ployer has filed with the Secretary of Labor an attestation under section 212(t)(1) for the purpose of permitting the nonimmigrant to obtain such extension. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00085 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 86 (D) The numerical limitation described in paragraph (1)(A) for a fiscal year shall be reduced by one for each alien granted an exten- sion under subparagraph (C) during such year who has obtained 5 or more consecutive prior extensions. (9)(A) Subject to subparagraphs (B) and (C), an alien who has al- ready been counted toward the numerical limitation of paragraph (1)(B) during fiscal year 2013, 2014, or 2015 shall not again be counted toward such limitation during fiscal year 2016. Such an alien shall be considered a returning worker. (B) A petition to admit or otherwise provide status under section 101(a)(15)(H)(ii)(b) shall include, with respect to a returning work- er— (i) all information and evidence that the Secretary of Home- land Security determines is required to support a petition for status under section 101(a)(15)(H)(ii)(b); (ii) the full name of the alien; and (iii) a certification to the Department of Homeland Security that the alien is a returning worker. (C) An H–2B visa or grant of nonimmigrant status for a return- ing worker shall be approved only if the alien is confirmed to be a returning worker by— (i) the Department of State; or (ii) if the alien is visa exempt or seeking to change to status under section 101 (a)(15)(H)(ii)(b), the Department of Home- land Security. (10) The numerical limitations of paragraph (1)(B) shall be allo- cated for a fiscal year so that the total number of aliens subject to such numerical limits who enter the United States pursuant to a visa or are accorded nonimmigrant status under section 101(a)(15)(H)(ii)(b) during the first 6 months of such fiscal year is not more than 33,000. (11)(A) The Secretary of State may not approve a number of ini- tial applications submitted for aliens described in section 101(a)(15)(E)(iii) that is more than the applicable numerical limita- tion set out in this paragraph. (B) The applicable numerical limitation referred to in subpara- graph (A) is 10,500 for each fiscal year. (C) The applicable numerical limitation referred to in subpara- graph (A) shall only apply to principal aliens and not to the spouses or children of such aliens. (h) The fact that an alien is the beneficiary of an application for a preference status filed under section 204 or has otherwise sought permanent residence in the United States shall not constitute evi- dence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 101(a)(15) or otherwise obtain- ing or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 248 to a classification as such a nonimmigrant before the alien’s most recent departure from the United States. (i)(1) Except as provided in paragraph (3), for purposes of section 101(a)(15)(H)(i)(b), section 101(a)(15)(E)(iii), and paragraph (2), the term ‘‘specialty occupation’’ means an occupation that requires— (A) theoretical and practical application of a body of highly specialized knowledge, and VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00086 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 87 (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. (2) For purposes of section 101(a)(15)(H)(i)(b), the requirements of this paragraph, with respect to a specialty occupation, are— (A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, (B) completion of the degree described in paragraph (1)(B) for the occupation, or (C)(i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the spe- cialty. (3) For purposes of section 101(a)(15)(H)(i)(b1), the term ‘‘spe- cialty occupation’’ means an occupation that requires— (A) theoretical and practical application of a body of special- ized knowledge; and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. (j) (1) Notwithstanding any other provision of this Act, an alien who is a citizen of Canada or Mexico who seeks to enter the United States under and pursuant to the provisions of Section B, Section C, or Section D of Annex 16–A of the USMCA (as defined in section 3 of the United States-Mexico-Canada Agree- ment Implementation Act), shall not be classified as a non- immigrant under such provisions if there is in progress a strike or lockout in the course of a labor dispute in the occupa- tional classification at the place or intended place of employ- ment, unless such alien establishes, pursuant to regulations promulgated by the Attorney General, that the alien’s entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout. Notice of a determination under this paragraph shall be given as may be required by paragraph 3 of article 16.4 of the USMCA. For purposes of this paragraph, the term ‘‘citizen of Mexico’’ means ‘‘citizen’’ as defined in article 16.1 of the USMCA. (2) Notwithstanding any other provision of this Act except section 212(t)(1), and subject to regulations promulgated by the Secretary of Homeland Security, an alien who seeks to enter the United States under and pursuant to the provisions of an agreement listed in subsection (g)(8)(A), and the spouse and children of such an alien if accompanying or following to join the alien, may be denied admission as a nonimmigrant under subparagraph (E), (L), or (H)(i)(b1) of section 101(a)(15) if there is in progress a labor dispute in the occupational classification at the place or intended place of employment, unless such alien establishes, pursuant to regulations promulgated by the Secretary of Homeland Security after consulta- tion with the Secretary of Labor, that the alien’s entry will not af- fect adversely the settlement of the labor dispute or the employ- ment of any person who is involved in the labor dispute. Notice of a determination under this paragraph shall be given as may be re- quired by such agreement. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00087 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 88 (k)(1) The number of aliens who may be provided a visa as non- immigrants under section 101(a)(15)(S)(i) in any fiscal year may not exceed 200. The number of aliens who may be provided a visa as nonimmigrants under section 101(a)(15)(S)(ii) in any fiscal year may not exceed 50. (2) The period of admission of an alien as such a nonimmigrant may not exceed 3 years. Such period may not be extended by the Attorney General. (3) As a condition for the admission, and continued stay in lawful status, of such a nonimmigrant, the nonimmigrant— (A) shall report not less often than quarterly to the Attorney General such information concerning the alien’s whereabouts and activities as the Attorney General may require; (B) may not be convicted of any criminal offense punishable by a term of imprisonment of 1 year or more after the date of such admission; (C) must have executed a form that waives the non- immigrant’s right to contest, other than on the basis of an ap- plication for withholding of removal, any action for removal of the alien instituted before the alien obtains lawful permanent resident status; and (D) shall abide by any other condition, limitation, or restric- tion imposed by the Attorney General. (4) The Attorney General shall submit a report annually to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate concerning— (A) the number of such nonimmigrants admitted; (B) the number of successful criminal prosecutions or inves- tigations resulting from cooperation of such aliens; (C) the number of terrorist acts prevented or frustrated re- sulting from cooperation of such aliens; (D) the number of such nonimmigrants whose admission or cooperation has not resulted in successful criminal prosecution or investigation or the prevention or frustration of a terrorist act; and (E) the number of such nonimmigrants who have failed to re- port quarterly (as required under paragraph (3)) or who have been convicted of crimes in the United States after the date of their admission as such a nonimmigrant. (l)(1) In the case of a request by an interested State agency, or by an interested Federal agency, for a waiver of the 2-year foreign residence requirement under section 212(e) on behalf of an alien described in clause (iii) of such section, the Attorney General shall not grant such waiver unless— (A) in the case of an alien who is otherwise contractually ob- ligated to return to a foreign country, the government of such country furnishes the Director of the United States Informa- tion Agency with a statement in writing that it has no objec- tion to such waiver; (B) in the case of a request by an interested State agency, the grant of such waiver would not cause the number of waiv- ers allotted for that State for that fiscal year to exceed 30; (C) in the case of a request by an interested Federal agency or by an interested State agency— VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00088 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 89 (i) the alien demonstrates a bona fide offer of full-time employment at a health facility or health care organiza- tion, which employment has been determined by the Attor- ney General to be in the public interest; and (ii) the alien agrees to begin employment with the health facility or health care organization within 90 days of re- ceiving such waiver, and agrees to continue to work for a total of not less than 3 years (unless the Attorney General determines that extenuating circumstances exist, such as closure of the facility or hardship to the alien, which would justify a lesser period of employment at such health facil- ity or health care organization, in which case the alien must demonstrate another bona fide offer of employment at a health facility or health care organization for the re- mainder of such 3-year period); and (D) in the case of a request by an interested Federal agency (other than a request by an interested Federal agency to em- ploy the alien full-time in medical research or training) or by an interested State agency, the alien agrees to practice pri- mary care or specialty medicine in accordance with paragraph (2) for a total of not less than 3 years only in the geographic area or areas which are designated by the Secretary of Health and Human Services as having a shortage of health care pro- fessionals, except that— (i) in the case of a request by the Department of Vet- erans Affairs, the alien shall not be required to practice medicine in a geographic area designated by the Secretary; (ii) in the case of a request by an interested State agen- cy, the head of such State agency determines that the alien is to practice medicine under such agreement in a fa- cility that serves patients who reside in one or more geo- graphic areas so designated by the Secretary of Health and Human Services (without regard to whether such facility is located within such a designated geographic area), and the grant of such waiver would not cause the number of the waivers granted on behalf of aliens for such State for a fiscal year (within the limitation in subparagraph (B)) in accordance with the conditions of this clause to exceed 10; and (iii) in the case of a request by an interested Federal agency or by an interested State agency for a waiver for an alien who agrees to practice specialty medicine in a fa- cility located in a geographic area so designated by the Secretary of Health and Human Services, the request shall demonstrate, based on criteria established by such agency, that there is a shortage of health care professionals able to provide services in the appropriate medical specialty to the patients who will be served by the alien. (2)(A) Notwithstanding section 248(a)(2), the Attorney Gen- eral may change the status of an alien who qualifies under this subsection and section 212(e) to that of an alien described in section 101(a)(15)(H)(i)(b). The numerical limitations contained in subsection (g)(1)(A) shall not apply to any alien whose sta- tus is changed under the preceding sentence, if the alien ob- tained a waiver of the 2-year foreign residence requirement VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00089 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 90 upon a request by an interested Federal agency or an inter- ested State agency. (B) No person who has obtained a change of status under subparagraph (A) and who has failed to fulfill the terms of the contract with the health facility or health care organization named in the waiver application shall be eligible to apply for an immigrant visa, for permanent residence, or for any other change of nonimmigrant status, until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of at least 2 years following departure from the United States. (3) Notwithstanding any other provision of this subsection, the 2-year foreign residence requirement under section 212(e) shall apply with respect to an alien described in clause (iii) of such section, who has not otherwise been accorded status under section 101(a)(27)(H), if— (A) at any time the alien ceases to comply with any agreement entered into under subparagraph (C) or (D) of paragraph (1); or (B) the alien’s employment ceases to benefit the public interest at any time during the 3-year period described in paragraph (1)(C). (m)(1) An alien may not be accorded status as a nonimmigrant under clause (i) or (iii) of section 101(a)(15)(F) in order to pursue a course of study— (A) at a public elementary school or in a publicly funded adult education program; or (B) at a public secondary school unless— (i) the aggregate period of such status at such a school does not exceed 12 months with respect to any alien, and (ii) the alien demonstrates that the alien has reimbursed the local educational agency that administers the school for the full, unsubsidized per capita cost of providing edu- cation at such school for the period of the alien’s attend- ance. (2) An alien who obtains the status of a nonimmigrant under clause (i) or (iii) of section 101(a)(15)(F) in order to pursue a course of study at a private elementary or secondary school or in a lan- guage training program that is not publicly funded shall be consid- ered to have violated such status, and the alien’s visa under section 101(a)(15)(F) shall be void, if the alien terminates or abandons such course of study at such a school and undertakes a course of study at a public elementary school, in a publicly funded adult edu- cation program, in a publicly funded adult education language training program, or at a public secondary school (unless the re- quirements of paragraph (1)(B) are met). (n)(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new em- ployment upon the filing by the prospective employer of a new peti- tion on behalf of such nonimmigrant as provided under subsection (a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00090 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 91 (2) A nonimmigrant alien described in this paragraph is a non- immigrant alien— (A) who has been lawfully admitted into the United States; (B) on whose behalf an employer has filed a nonfrivolous pe- tition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and (C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition. (o)(1) No alien shall be eligible for admission to the United States under section 101(a)(15)(T) if there is substantial reason to believe that the alien has committed an act of a severe form of trafficking in persons (as defined in section 103 of the Trafficking Victims Pro- tection Act of 2000). (2) The total number of aliens who may be issued visas or other- wise provided nonimmigrant status during any fiscal year under section 101(a)(15)(T) may not exceed 5,000. (3) The numerical limitation of paragraph (2) shall only apply to principal aliens and not to the spouses, sons, daughters, siblings, or parents of such aliens. (4) An unmarried alien who seeks to accompany, or follow to join, a parent granted status under section 101(a)(15)(T)(i), and who was under 21 years of age on the date on which such parent applied for such status, shall continue to be classified as a child for pur- poses of section 101(a)(15)(T)(ii), if the alien attains 21 years of age after such parent’s application was filed but while it was pending. (5) An alien described in clause (i) of section 101(a)(15)(T) shall continue to be treated as an alien described in clause (ii)(I) of such section if the alien attains 21 years of age after the alien’s applica- tion for status under such clause (i) is filed but while it is pending. (6) In making a determination under section 101(a)(15)(T)(i)(III)(aa) with respect to an alien, statements from State and local law enforcement officials that the alien has com- plied with any reasonable request for assistance in the investiga- tion or prosecution of crimes such as kidnapping, rape, slavery, or other forced labor offenses, where severe forms of trafficking in per- sons (as defined in section 103 of the Trafficking Victims Protection Act of 2000) appear to have been involved, shall be considered. (7)(A) Except as provided in subparagraph (B), an alien who is issued a visa or otherwise provided nonimmigrant status under sec- tion 101(a)(15)(T) may be granted such status for a period of not more than 4 years. (B) An alien who is issued a visa or otherwise provided non- immigrant status under section 101(a)(15)(T) may extend the pe- riod of such status beyond the period described in subparagraph (A) if— (i) a Federal, State, or local law enforcement official, pros- ecutor, judge, or other authority investigating or prosecuting activity relating to human trafficking or certifies that the pres- ence of the alien in the United States is necessary to assist in the investigation or prosecution of such activity; (ii) the alien is eligible for relief under section 245(l) and is unable to obtain such relief because regulations have not been issued to implement such section; or VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00091 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 92 (iii) the Secretary of Homeland Security determines that an extension of the period of such nonimmigrant status is war- ranted due to exceptional circumstances. (C) Nonimmigrant status under section 101(a)(15)(T) shall be ex- tended during the pendency of an application for adjustment of sta- tus under section 245(l). (p) REQUIREMENTS APPLICABLE TO SECTION 101(a)(15)(U) VISAS.— (1) PETITIONING PROCEDURES FOR SECTION 101(a)(15)(U) VISAS.—The petition filed by an alien under section 101(a)(15)(U)(i) shall contain a certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating criminal activity described in section 101(a)(15)(U)(iii). This certification may also be provided by an official of the Service whose ability to provide such certification is not limited to information con- cerning immigration violations. This certification shall state that the alien ‘‘has been helpful, is being helpful, or is likely to be helpful’’ in the investigation or prosecution of criminal ac- tivity described in section 101(a)(15)(U)(iii). (2) NUMERICAL LIMITATIONS.— (A) The number of aliens who may be issued visas or otherwise provided status as nonimmigrants under section 101(a)(15)(U) in any fiscal year shall not exceed 10,000. (B) The numerical limitations in subparagraph (A) shall only apply to principal aliens described in section 101(a)(15)(U)(i), and not to spouses, children, or, in the case of alien children, the alien parents of such children. (3) DUTIES OF THE ATTORNEY GENERAL WITH RESPECT TO ‘‘U’’ VISA NONIMMIGRANTS.—With respect to nonimmigrant aliens described in subsection (a)(15)(U)— (A) the Attorney General and other government officials, where appropriate, shall provide those aliens with refer- rals to nongovernmental organizations to advise the aliens regarding their options while in the United States and the resources available to them; and (B) the Attorney General shall, during the period those aliens are in lawful temporary resident status under that subsection, provide the aliens with employment authoriza- tion. (4) CREDIBLE EVIDENCE CONSIDERED.—In acting on any peti- tion filed under this subsection, the consular officer or the At- torney General, as appropriate, shall consider any credible evi- dence relevant to the petition. (5) NONEXCLUSIVE RELIEF.—Nothing in this subsection limits the ability of aliens who qualify for status under section 101(a)(15)(U) to seek any other immigration benefit or status for which the alien may be eligible. (6) DURATION OF STATUS.—The authorized period of status of an alien as a nonimmigrant under section 101(a)(15)(U) shall be for a period of not more than 4 years, but shall be extended upon certification from a Federal, State, or local law enforce- ment official, prosecutor, judge, or other Federal, State, or local authority investigating or prosecuting criminal activity de- scribed in section 101(a)(15)(U)(iii) that the alien’s presence in VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00092 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 93 the United States is required to assist in the investigation or prosecution of such criminal activity. The Secretary of Home- land Security may extend, beyond the 4-year period authorized under this section, the authorized period of status of an alien as a nonimmigrant under section 101(a)(15)(U) if the Secretary determines that an extension of such period is warranted due to exceptional circumstances. Such alien’s nonimmigrant status shall be extended beyond the 4-year period authorized under this section if the alien is eligible for relief under section 245(m) and is unable to obtain such relief because regulations have not been issued to implement such section and shall be extended during the pendency of an application for adjustment of status under section 245(m). The Secretary may grant work authorization to any alien who has a pending, bona fide appli- cation for nonimmigrant status under section 101(a)(15)(U). (7) AGE DETERMINATIONS.— (A) CHILDREN.—An unmarried alien who seeks to accom- pany, or follow to join, a parent granted status under sec- tion 101(a)(15)(U)(i), and who was under 21 years of age on the date on which such parent petitioned for such sta- tus, shall continue to be classified as a child for purposes of section 101(a)(15)(U)(ii), if the alien attains 21 years of age after such parent’s petition was filed but while it was pending. (B) PRINCIPAL ALIENS.—An alien described in clause (i) of section 101(a)(15)(U) shall continue to be treated as an alien described in clause (ii)(I) of such section if the alien attains 21 years of age after the alien’s application for sta- tus under such clause (i) is filed but while it is pending. (q)(1) In the case of a nonimmigrant described in section 101(a)(15)(V)— (A) the Attorney General shall authorize the alien to engage in employment in the United States during the period of au- thorized admission and shall provide the alien with an ‘‘em- ployment authorized’’ endorsement or other appropriate docu- ment signifying authorization of employment; and (B) the period of authorized admission as such a non- immigrant shall terminate 30 days after the date on which any of the following is denied: (i) The petition filed under section 204 to accord the alien a status under section 203(a)(2)(A) (or, in the case of a child granted nonimmigrant status based on eligibility to receive a visa under section 203(d), the petition filed to ac- cord the child’s parent a status under section 203(a)(2)(A)). (ii) The alien’s application for an immigrant visa pursu- ant to the approval of such petition. (iii) The alien’s application for adjustment of status under section 245 pursuant to the approval of such peti- tion. (2) In determining whether an alien is eligible to be admitted to the United States as a nonimmigrant under section 101(a)(15)(V), the grounds for inadmissibility specified in section 212(a)(9)(B) shall not apply. (3) The status of an alien physically present in the United States may be adjusted by the Attorney General, in the discretion of the VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00093 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 94 Attorney General and under such regulations as the Attorney Gen- eral may prescribe, to that of a nonimmigrant under section 101(a)(15)(V), if the alien— (A) applies for such adjustment; (B) satisfies the requirements of such section; and (C) is eligible to be admitted to the United States, except in determining such admissibility, the grounds for inadmissibility specified in paragraphs (6)(A), (7), and (9)(B) of section 212(a) shall not apply. (r)(1) A visa shall not be issued under the provisions of section 101(a)(15)(K)(ii) until the consular officer has received a petition filed in the United States by the spouse of the applying alien and approved by the Attorney General. The petition shall be in such form and contain such information as the Attorney General shall, by regulation, prescribe. Such information shall include informa- tion on any criminal convictions of the petitioner for any specified crime described in paragraph (5)(B) and information on any perma- nent protection or restraining order issued against the petitioner related to any specified crime described in subsection (5)(B)(i). (2) In the case of an alien seeking admission under section 101(a)(15)(K)(ii) who concluded a marriage with a citizen of the United States outside the United States, the alien shall be consid- ered inadmissible under section 212(a)(7)(B) if the alien is not at the time of application for admission in possession of a valid non- immigrant visa issued by a consular officer in the foreign state in which the marriage was concluded. (3) In the case of a nonimmigrant described in section 101(a)(15)(K)(ii), and any child of such a nonimmigrant who was admitted as accompanying, or following to join, such a non- immigrant, the period of authorized admission shall terminate 30 days after the date on which any of the following is denied: (A) The petition filed under section 204 to accord the prin- cipal alien status under section 201(b)(2)(A)(i). (B) The principal alien’s application for an immigrant visa pursuant to the approval of such petition. (C) The principal alien’s application for adjustment of status under section 245 pursuant to the approval of such petition. (4)(A) The Secretary of Homeland Security shall create a data- base for the purpose of tracking multiple visa petitions filed for fiance´(e)s and spouses under clauses (i) and (ii) of section 101(a)(15)(K). Upon approval of a second visa petition under sec- tion 101(a)(15)(K) for a fiance´(e) or spouse filed by the same United States citizen petitioner, the petitioner shall be notified by the Sec- retary that information concerning the petitioner has been entered into the multiple visa petition tracking database. All subsequent fiance´(e) or spouse nonimmigrant visa petitions filed by that peti- tioner under such section shall be entered in the database. (B)(i) Once a petitioner has had two fiance´(e) or spousal petitions approved under clause (i) or (ii) of section 101(a)(15)(K), if a subse- quent petition is filed under such section less than 10 years after the date the first visa petition was filed under such section, the Secretary of Homeland Security shall notify both the petitioner and beneficiary of any such subsequent petition about the number of previously approved fiance´(e) or spousal petitions listed in the database. VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00094 Fmt 6659 Sfmt 6602 E:\HR\OC\HR404.XXX HR404 95 (ii) To notify the beneficiary as required by clause (i), the Sec- retary of Homeland Security shall provide such notice to the Sec- retary of State for inclusion in the mailing to the beneficiary de- scribed in section 833(a)(5)(A)(i) of the International Marriage Broker Regulation Act of 2005 (8 U.S.C. 1375a(a)(5)(A)(i)). (5) In this subsection: (A) The terms ‘‘domestic violence’’, ‘‘sexual assault’’, ‘‘child abuse and neglect’’, ‘‘dating violence’’, ‘‘elder abuse’’, and ‘‘stalk- ing’’ have the meaning given such terms in section 3 of the Vio- lence Against Women and Department of Justice Reauthoriza- tion Act of 2005. (B) The term ‘‘specified crime’’ means the following: (i) Domestic violence, sexual assault, child abuse and ne- glect, dating violence, elder abuse, stalking, or an attempt to commit any such crime. (ii) Homicide, murder, manslaughter, rape, abusive sex- ual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of the crimes described in this clause. (iii) At least three convictions for crimes relating to a controlled substance or alcohol not arising from a single act. * * * * * * * Æ VerDate Sep 11 2014 01:22 Jul 17, 2022 Jkt 029006 PO 00000 Frm 00095 Fmt 6659 Sfmt 6611 E:\HR\OC\HR404.XXX HR404