8 USC 1186 - Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

View all text of Part II [§ 1181 - § 1189]

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

(a) In general

(1) Conditional basis for status

An alien investor, alien spouse, and alien child shall be considered, at the time of obtaining status as an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.

(2) Notice of requirements

(A) At time of obtaining permanent residence

At the time an alien investor, alien spouse, or alien child obtains permanent resident status on a conditional basis under paragraph (1), the Secretary of Homeland Security shall provide for notice to such an investor, spouse, or child respecting the provisions of this section and the requirements of subsection (c)(1) to have the conditional basis of such status removed.

(B) At time of required petition

In addition, the Secretary of Homeland Security shall attempt to provide notice to such an investor, 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).

The failure of the Secretary of Homeland Security to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such an investor, spouse, or child.

(b) Termination of status if finding that qualifying investment improper

(1) In general

In the case of an alien investor with permanent resident status on a conditional basis under subsection (a), if the Secretary of Homeland Security determines, before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence, that—

(A) the investment in the commercial enterprise was intended solely as a means of evading the immigration laws of the United States,

(B) the alien did not invest the requisite capital; or

then the Secretary of Homeland Security shall so notify the alien involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (and the alien spouse and alien child) involved as of the date of the determination.

(2) Hearing in removal proceeding

Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.

(1) In general

Except as provided in paragraph (3)(D), in order for the conditional basis established under subsection (a) for an alien investor, alien spouse, or alien child to be removed—

(A) the alien investor shall submit to the Secretary of Homeland Security, during the period described in subsection (d)(2), a 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);

(B) in accordance with subsection (d)(3), the alien investor shall appear for a personal interview before an officer or employee of the Department of Homeland Security respecting the facts and information described in subsection (d)(1); and

(C) the Secretary shall have performed a site visit to the relevant corporate office or business location described in section 1153(b)(5)(F)(iv) of this title.

(2) Termination of permanent resident status for failure to file petition or have personal interview

(A) In general

In the case of an alien with permanent resident status on a conditional basis under subsection (a), if—

(i) no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or

(ii) unless there is good cause shown, the alien investor fails to appear at the interview described in paragraph (1)(B) (if required under subsection (d)(3)),

the Secretary of Homeland Security shall terminate the permanent resident status of the alien (and the alien’s spouse and children if it was obtained on a conditional basis under this section or section 1186a of this title) as of the second anniversary of the alien’s lawful admission for permanent residence.

(B) Hearing in removal proceeding

In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B).

(3) Determination after petition and interview

(A) In general

If—

(i) a petition is filed in accordance with the provisions of paragraph (1)(A), and

(ii) the alien investor appears at any interview described in paragraph (1)(B),

the Secretary of Homeland Security shall make a determination, within 90 days of the date of such filing or interview (whichever 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 or extension of conditional basis

(i) In general

Except as provided in clause (ii), if the Secretary determines that the facts and information contained in a petition submitted under paragraph (1)(A) are true, including demonstrating that the alien complied with subsection (d)(1)(B)(i), the Secretary shall—

(I) notify the alien involved of such determination; and(II) remove the conditional basis of the alien’s status effective as of the second anniversary of the alien’s lawful admission for permanent residence.

(ii) Exception

If the petition demonstrates that the facts and information are true and that the alien is in compliance with subsection (d)(1)(B)(ii)—

(I) the Secretary, in the Secretary’s discretion, may provide a 1-year extension of the alien’s conditional status; and(II)(aa) if the alien files a petition not later than 30 days after the third anniversary of the alien’s lawful admission for permanent residence demonstrating that the alien complied with subsection (d)(1)(B)(i), the Secretary shall remove the conditional basis of the alien’s status effective as of such third anniversary; or(bb) if the alien does not file the petition described in item (aa), the conditional status shall terminate at the end of such additional year.

If the Secretary of Homeland Security determines that such facts and information are not true, the Secretary of Homeland Security shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien investor, alien spouse, or alien child as of the date of the determination.

(D) Hearing in removal proceeding

Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security 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 the alien—

(A) invested the requisite capital;

(B)

(i) created the employment required under section 1153(b)(5)(A)(ii) of this title; or

(ii) is actively in the process of creating the employment required under section 1153(b)(5)(A)(ii) of this title and will create such employment before the third anniversary of the alien’s lawful admission for permanent residence, provided that such alien’s capital will remain invested during such time; and

(2) Period for filing petition

(A) Ninety-day period before second anniversary

(i) In general

Except as provided in clause (ii) and subparagraph (B), a petition under subsection (c)(1)(A) shall be filed during the 90-day period immediately preceding the second anniversary of the alien investor’s lawful admission for permanent residence.

(ii)

Aliens described in subclauses (I)(bb) and (II) of section 1153(b)(5)(M)(ii) of this title shall file a petition under subsection (c)(1)(A) during the 90-day period before the second anniversary of the subsequent investment.

(B) Date petitions for good cause

Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Secretary of Homeland Security good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A).

In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Attorney General may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B).

(3) Personal interview

(A) In general

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 Department of Homeland Security, designated by the Secretary of Homeland Security, which is convenient to the parties involved.

(B) Waiver

The Secretary of Homeland Security, in the Secretary’s discretion, may waive the deadline for an interview under subsection (c)(1)(B) or the requirement for such an interview according to criteria developed by U.S. Citizenship and Immigration Services, in consultation with its Fraud Detection and National Security Directorate and U.S. Immigration and Customs Enforcement, provided that such criteria do not include a reduction of case processing times or the allocation of adjudicatory resources. A waiver may not be granted under this subparagraph if the alien to be interviewed—

(i) invested in a regional center, new commercial enterprise, or job-creating entity that was sanctioned under section 1153(b)(5) of this title; or

(ii) is in a class of aliens determined by the Secretary to be threats to public safety or national security.

(e) Treatment of period for purposes of naturalization

For purposes of subchapter III, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully 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 investor” means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) under section 1153(b)(5) of this title.

(2) The term “alien spouse” and the term “alien child” mean an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the spouse or child, respectively, of an alien investor.

(3) The term “commercial enterprise” includes any entity formed for the purpose of doing for-profit business.

(June 27, 1952, ch. 477, title II, ch. 2, § 216A, as added Pub. L. 101–649, title I, § 121(b)(1), Nov. 29, 1990, 104 Stat. 4990; amended Pub. L. 102–232, title III, § 302(b)(3), Dec. 12, 1991, 105 Stat. 1743; Pub. L. 104–208, div. C, title III, § 308(e)(8), Sept. 30, 1996, 110 Stat. 3009–620; Pub. L. 107–273, div. C, title I, § 11036(b), Nov. 2, 2002, 116 Stat. 1847; Pub. L. 117–103, div. BB, § 104(a), Mar. 15, 2022, 136 Stat. 1100.)