CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN SEC. 216A. [8 U.S.C. 1186b] (a) IN GENERAL— (1) CONDITIONAL BASIS FOR STATUS.-Notwithstanding an other provision of this Act, an alien entrepreneur (as define in subsection (f/1)), alien spouse, and alien child (as defined :: subsection (f/2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent res dence, to have obtained such status on a conditional basis subject to the provisions of this section. (2) NOTICE OF REQUIREMENTS.— (A) AT TIME OF OBTAINING PERMANENT RESIDENCE.—A: the time an alien entrepreneur, alien spouse, or alien chili obtains permanent resident status on a conditional basis under paragraph (1), the Attorney General shall provide for notice to such an entrepreneur, spouse, or child respecting the provisions of this section and the require ments of subsection (c)(1) to have the conditional basis of such status removed. (B) AT TIME OF REQUIRED PETITION.—In addition, the At torney General shall attempt to provide notice to such an entrepreneur, spouse, or child, at or about the beginning of the 90-day period described in subsection (d)(2)(A), of the requirements of subsection (c)(1). (C) EFFECT OF FAILURE TO PROVIDE NOTICE.-The failure of the Attorney General to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such an entrepreneur, spouse, or child. (b) TERMINATION OF STATUS IF FINDING THAT QUALIFYING ENTREPRENEURSHIP IMPROPER.— (1) IN GENERAL.-In the case of an alien entrepreneur with permanent resident status on a conditional basis under subsection (a), if the Attorney General determines, before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, that (A) the establishment of the commercial enterprise was intended solely as a means of evading the immigration laws of the United States, (B)(i) a commercial enterprise was not established by the alien, (ii) the alien did not invest or was not actively in the process of investing the requisite capital; or (iii) the alien was not sustaining the actions described in clause (i) or (ii) throughout the period of the alien's residence in the United States, or (C) the alien was otherwise not conforming to the requirements of section 203(b)(5), 130 This section was inserted by § 121(b) of the Immigration Act of 1990 (P.L. 101-649, Nov. 29, 1990, 104 Stat. 1990), and was amended by § 302(b)(3) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L. 102-232, Dec. 12, 1991, 105 Stat. 1743). then the Attorney General shall so notify the alien involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (and the alien spouse and alien child) involved as of the date of the determination. (2) HEARING IN DEPORTATION PROCEEDING.-Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to deport the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met. (c) REQUIREMENTS OF TIMELY PETITION AND INTERVIEW FOR REMOVAL OF CONDITION. (1) IN GENERAL.-In order for the conditional basis established under subsection (a) for an alien entrepreneur, alien spouse, or alien child to be removed (A) the alien entrepreneur must submit to the Attorney General, during the period described in subsection (d)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1), and (B) in accordance with subsection (d)(3), the alien entrepreneur must appear for a personal interview before an officer or employee of the Service respecting the facts and information described in subsection (d)(1). (2) TERMINATION OF PERMANENT RESIDENT STATUS FOR FAILURE TO FILE PETITION OR HAVE PERSONAL INTERVIEW. (A) IN GENERAL.-In the case of an alien with permanent resident status on a conditional basis under subsection (a), if (i) no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or (ii) unless there is good cause shown, the alien entrepreneur fails to appear at the interview described in paragraph (1)(B) (if required under subsection (d)(3)), the Attorney General shall terminate the permanent resident status of the alien (and the alien's spouse and children if it was obtained on a conditional basis under this section or section 216) as of the second anniversary of the alien's lawful admission for permanent residence. (B) HEARING IN DEPORTATION PROCEEDING.—In any deportation proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B). (3) DETERMINATION AFTER PETITION AND INTERVIEW.(A) IN GENERAL.—If— (i) a petition is filed in accordance with the provisions of paragraph (1)(A), and (ii) the alien entrepreneur appears at any interview described in paragraph (1)(B), the Attorney General shall make a determination, within 90 days of the date of the such filing or interview (which ever is later), as to whether the facts and information described in subsection (d)(1) and alleged in the petition are true with respect to the qualifying commercial enterprise. (B) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DETERMINATION. If the Attorney General determines that such facts and information are true, the Attorney General shall so notify the alien involved and shall remove the conditional basis of the alien's status effective as of the second anniversary of the alien's lawful admission for permanent residence. (C) TERMINATION IF ADVERSE DETERMINATION.-If the Attorney General determines that such facts and information are not true, the Attorney General shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien entrepreneur, alien spouse, or alien child as of the date of the determination. (D) HEARING IN DEPORTATION PROCEEDING.-Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to deport the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) and alleged in the petition are not true with respect to the qualifying commercial enterprise. (d) Details of Petition AND INTERVIEW.— (1) CONTENTS OF PETITION.-Each petition under subsection (c)(1)(A) shall contain facts and information demonstrating that (A) a commercial enterprise was established by the alien; (B) the alien invested or was actively in the process of investing the requisite capital; and (C) the alien sustained the actions described in subparagraphs (A) and (B) throughout the period of the alien's residence in the United States. (2) PERIOD FOR FILING PETITION. (A) 90-DAY PERIOD BEFORE SECOND ANNIVERSARY.-Except as provided in subparagraph (B), the petition under subsection (c)(1)(A) must be filed during the 90-day period before the second anniversary of the alien's lawful admission for permanent residence. (B) DATE PETITIONS FOR GOOD CAUSE.-Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Attorney General good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A). (C) FILING OF PETITIONS DURING DEPORTATION.-In the case of an alien who is the subject of deportation hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Attorney General may stay such deportation proceedings against an alien pending the filing of the petition under subparagraph (B). (3) PERSONAL INTERVIEW.-The interview under subsection (c)(1)(B) shall be conducted within 90 days after the date of submitting a petition under subsection (c)(1)(A) and at a local office of the Service, designated by the Attorney General, which is convenient to the parties involved. The Attorney General, in the Attorney General's discretion, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate. (e) TREATMENT OF PERIOD FOR PURPOSES OF NATURALIZATION.— For purposes of title III, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence. (f) DEFINITIONS.-In this section: (1) The term "alien entrepreneur" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) under section 203(b)(5). (2) The term "alien spouse" and the term "alien child" mean an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the spouse or child, respectively, of an alien entrepreneur. VISA WAIVER PILOT PROGRAM FOR CERTAIN VISITORS 131 SEC. 217. [8 U.S.C. 1187] (a) ESTABLISHMENT OF PILOT PROGRAM. The Attorney General and the Secretary of State are authorized to establish a pilot program (hereinafter in this section referred to as the "pilot program") under which the requirement of paragraph (7)(B)(i)(II) of section 212(a) may be waived by the Attorney General and the Secretary of State, acting jointly and in accordance with this section, in the case of an alien who meets the following requirements: (1) SEEKING ENTRY AS TOURIST FOR 90 DAYS OR LESS.-The alien is applying for admission during the pilot program period (as defined in subsection (e)) as a nonimmigrant visitor (described in section 101(a)(15)(B)) for a period not exceeding 90 days. (2) NATIONAL OF PILOT PROGRAM COUNTRY.-The alien is a national of, and presents a passport issued by, a country which— (A) extends (or agrees to extend) reciprocal privileges to citizens and nationals of the United States, and 131 This section was amended by § 201(a) of the Immigration Act of 1990 (P.L. 101-649, Nov. 29, 1990, 104 Stat. 5012), effective November 29, 1990, and was further amended by § 303(a) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L. 102-232, Dec. 12, 1991, 105 Stat. 1746). For monitoring and reports on this section, see § 405 of IRCA (100 Stat. 3442), shown in Appendix II.B.1. and § 201(c) of the Immigration Act of 1990 (104 Stat. 5014), shown in Appendix II.A.1. (B) is designated as a pilot program country under subsection (c). (3) EXECUTES IMMIGRATION FORMS.—The alien before the time of such admission completes such immigration form as the Attorney General shall establish. (4) ENTRY INTO THE UNITED STATES.-If arriving by sea or air, the alien arrives at the port of entry into the United States on a carrier which has entered into an agreement with the Service to guarantee transport of the alien out of the United States if the alien is found inadmissible or deportable by an immigration officer. (5) Not a SAFETY THREAT.-The alien has been determined not to represent a threat to the welfare, health, safety, or security of the United States. (6) NO PREVIOUS VIOLATION.—If the alien previously was admitted without a visa under this section, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant. (7) ROUND-TRIP TICKET.-The alien is in possession of a roundtrip transportation ticket (unless this requirement is waived by the Attorney General under regulations). (b) WAIVER OF RIGHTS.-An alien may not be provided a waiver under the pilot program unless the alien has waived any right— (1) to review or appeal under this Act of an immigration officer's determination as to the admissibility of the alien at the port of entry into the United States, or (2) to contest, other than on the basis of an application for asylum, any action for deportation against the alien. (c) DESIGNATION OF PILOT PROGRAM COUNTRIES. (1) IN GENERAL.-The Attorney General and the Secretary of State acting jointly may designate any country as a pilot program country if it meets the requirements of paragraph (2). (2) QUALIFICATIONS.-A country may not be designated as a pilot program country unless the following requirements are met: (A) LOW NONIMMIGRANT VISA REFUSAL RATE FOR PREVIOUS 2-YEAR PERIOD.-The average number of refusals of nonimmigrant visitor visas for nationals of that country during the two previous full fiscal years was less than 2.0 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during those years. (B) LOW NONIMMIGRANT VISA REFUSAL RATE FOR EACH OF 2 PREVIOUS YEARS.-The average number of refusals of nonimmigrant visitor visas for nationals of that country during either of such two previous full fiscal years was less than 2.5 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during that year. (C) MACHINE READABLE PASSPORT PROGRAM.—The government of the country certifies that it has or is in the process of developing a program to issue machine-readable passports to its citizens. |