§ 11031. REMOVAL OF CONDITIONAL BASIS OF PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHILDREN.

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In General .— In lieu of the provisions of section 216A(c)(3) of the Immigration and Nationality Act ( 8 U.S.C. 1186b(c)(3) ), subsection

(c)shall apply in the case of an eligible alien described in subsection (b)(1). Eligible Aliens Described.— In general .— An alien is an eligible alien described in this subsection if the alien— filed, under section 204(a)(1)(H) of the Immigration and Nationality Act ( 8 U.S.C. 1154(a)(1)(H) ) (or any predecessor provision), a petition to accord the alien a status under section 203(b)(5) of such Act ( 8 U.S.C. 1153(b)(5) ) that was approved by the Attorney General after January 1, 1995 , and before August 31, 1998 ; pursuant to such approval, obtained the status of an alien entrepreneur with permanent resident status on a conditional basis described in section 216A of such Act ( 8 U.S.C. 1186b ); and timely filed, in accordance with section 216A(c)(1)(A) of such Act ( 8 U.S.C. 1186b(c)(1)(A) ) and before the date of the enactment of this Act [ Nov. 2, 2002 ], a petition requesting the removal of such conditional basis. Reopening petitions previously denied.— In general .— In the case of a petition described in paragraph (1)(C) that was denied under section 216A(c)(3)(C) of the Immigration and Nationality Act ( 8 U.S.C. 1186b(c)(3)(C) ) before the date of the enactment of this Act, upon a motion to reopen such petition filed by the eligible alien not later than 60 days after such date, the Attorney General shall make determinations on such petition pursuant to subsection (c). Petitioners abroad .— In the case of such an eligible alien who is no longer physically present in the United States, the Attorney General shall establish a process under which the alien may be paroled into the United States if necessary in order to obtain the determinations under subsection (c), unless the Attorney General finds that— the alien is inadmissible or deportable on any ground; or the petition described in paragraph (1)(C) was denied on the ground that it contains a material misrepresentation in the facts and information described in section 216A(d)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1186b(d)(1) ) and alleged in the petition with respect to a commercial enterprise. Deportation or removal proceedings .— In the case of such an eligible alien who was placed in deportation or removal proceedings by reason of the denial of the petition described in paragraph (1)(C), a motion to reopen filed under subparagraph

(A)shall be treated as a motion to reopen such proceedings. The Attorney General shall grant such motion notwithstanding any time and number limitations imposed by law on motions to reopen such proceedings, except that the scope of any proceeding reopened on this basis shall be limited to whether any order of deportation or removal should be vacated, and the alien granted the status of an alien lawfully admitted for permanent residence (unconditionally or on a conditional basis), by reason of the determinations made under subsection (c). An alien who is inadmissible or deportable on any ground shall not be granted such status, except that this prohibition shall not apply to an alien who has been paroled into the United States under subparagraph (B). Determinations on Petitions.— Initial determination.— In general .— With respect to each eligible alien described in subsection (b)(1), the Attorney General shall make a determination, not later than 180 days after the date of the enactment of this Act [ Nov. 2, 2002 ], whether— the petition described in subsection (b)(1)(C) contains any material misrepresentation in the facts and information described in section 216A(d)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1186b(d)(1) ) and alleged in the petition with respect to a commercial enterprise (regardless of whether such enterprise is a limited partnership and regardless of whether the alien entered the enterprise after its formation); subject to subparagraphs

(B)and (C), such enterprise created full-time jobs for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the eligible alien and the alien’s spouse, sons, or daughters), and those jobs exist or existed on any of the dates described in subparagraph (D); and on any of the dates described in subparagraph (D), the alien is in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act ( 8 U.S.C. 1186b(d)(1)(B) ). Investment under pilot immigration program .— For purposes of subparagraph (A)(ii), an investment that satisfies the requirements of section 610(c) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 ( 8 U.S.C. 1153 note), as in effect on the date of the enactment of this Act [ Nov. 2, 2002 ], shall be deemed to satisfy the requirements of such subparagraph. Exception for troubled businesses .— In the case of an eligible alien who has made a capital investment in a troubled business (as defined in 8 CFR 204.6(e), as in effect on the date of the enactment of this Act), in lieu of the determination under subparagraph (A)(ii), the Attorney General shall determine whether the number of employees of the business, as measured on any of the dates described in subparagraph (D), is at no less than the pre-investment level. Dates .— The dates described in this subparagraph are the following: The date on which the petition described in subsection (b)(1)(C) is filed. 6 months after the date described in clause (i). The date on which the determination under subparagraph

(A)or

(C)is made. Removal of conditional basis if favorable determination .— If the Attorney General renders an affirmative determination with respect to clauses

(ii)and

(iii)of subparagraph (A), and if the Attorney General renders a negative determination with respect to clause

(iii)of subparagraph (A), the Attorney General shall so notify the alien involved. The notice shall be in writing and shall state the factual basis for any adverse determination. The Attorney General shall provide the alien with an opportunity to submit evidence to rebut any adverse determination. If the Attorney General reverses all adverse determinations pursuant to such rebuttal, the Attorney General shall so notify the alien involved and shall remove the conditional basis of the alien’s status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immigration and Nationality Act ( 8 U.S.C. 1186b )) effective as of the second anniversary of the alien’s lawful admission for permanent residence. Continuation of conditional basis if certain adverse determinations .— If the Attorney General renders an adverse determination with respect to clause

(ii)or

(iii)of subparagraph (A), and the eligible alien’s rebuttal does not cause the Attorney General to reverse such determination, the Attorney General shall continue the conditional basis of the alien’s permanent resident status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immigration and Nationality Act ( 8 U.S.C. 1186b )) for a 2-year period. Termination if adverse determination .— If the Attorney General renders an adverse determination with respect to subparagraph (A)(i), and the eligible alien’s rebuttal does not cause the Attorney General to reverse such determination, the Attorney General shall so notify the alien involved and, subject to subsection (d), shall terminate the permanent resident status of the alien (and that of the alien’s spouse and children if it was obtained on a conditional basis under section 216A of the Immigration and Nationality Act ( 8 U.S.C. 1186b )). Administrative and judicial review .— An alien may seek administrative review of an adverse determination made under subparagraph

(A)by filing a petition for such review with the Board of Immigration Appeals. If the Board of Immigration Appeals denies the petition, the alien may seek judicial review. The procedures for judicial review under this clause shall be the same as the procedures for judicial review of a final order of removal under section 242(a)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1252(a)(1) ). During the period in which an administrative or judicial appeal under this clause is pending, the Attorney General shall continue the conditional basis of the alien’s permanent resident status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immigration and Nationality Act ( 8 U.S.C. 1186b )). Second determination.— Authorization to consider investments in other commercial enterprises .— In determining under this paragraph whether to remove a conditional basis continued under paragraph (1)(F)(ii) with respect to an alien, the Attorney General shall consider any capital investment made by the alien in a commercial enterprise (regardless of whether such enterprise is a limited partnership and regardless of whether the alien entered the enterprise after its formation), in the United States, regardless of whether that investment was made before or after the determinations under paragraph

(1)and regardless of whether the commercial enterprise is the same as that considered in the determinations under such paragraph, if facts and information with respect to the investment and the enterprise are included in the petition submitted under subparagraph (B). Petition .— In order for a conditional basis continued under paragraph (1)(F)(ii) for an eligible alien (and the alien’s spouse and children) to be removed, the alien must submit to the Attorney General, during the period described in subparagraph (C), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subparagraphs

(A)and

(B)of section 216A(d)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1186b(d)(1) ) with respect to any commercial enterprise (regardless of whether such enterprise is a limited partnership and regardless of whether the alien entered the enterprise after its formation) which the alien desires to have considered under this paragraph, regardless of whether such enterprise was created before or after the determinations made under paragraph (1). Period for filing petition.— day period before second anniversary .— Except as provided in clause (ii), the petition under subparagraph

(B)must be filed during the 90-day period before the second anniversary of the continuation, under paragraph (1)(F)(ii), of the conditional basis of the alien’s lawful admission for permanent residence. Date petitions for good cause .— Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Attorney General good cause and extenuating circumstances for failure to file the petition during the period described in clause (i). Termination of permanent resident status for failure to file petition.— In general .— In the case of an alien with permanent resident status on a conditional basis under paragraph (1)(F)(ii), if no petition is filed with respect to the alien in accordance with subparagraph (B), the Attorney General shall terminate the permanent resident status of the alien (and the alien’s spouse and children if it was obtained on a conditional basis under section 216A of the Immigration and Nationality Act ( 8 U.S.C. 1186b )) as of the second anniversary of the continuation, under paragraph (1)(F)(ii), of the conditional basis of the alien’s lawful admission for permanent residence. Hearing in removal proceeding .— In any removal proceeding with respect to an alien whose permanent resident status is terminated under clause (i), the burden of proof shall be on the alien to establish compliance with subparagraph (B). Determinations after petition .— If a petition is filed by an eligible alien in accordance with subparagraph (B), the Attorney General shall make a determination, within 90 days of the date of such filing, whether— the petition contains any material misrepresentation in the facts and information alleged in the petition with respect to the commercial enterprises included in such petition; all such enterprises, considered together, created full-time jobs for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the eligible alien and the alien’s spouse, sons, or daughters), and those jobs exist on the date on which the determination is made, except that— this clause shall apply only if the Attorney General made an adverse determination with respect to the eligible alien under paragraph (1)(A)(ii); the provisions of subparagraphs

(B)and

(C)of paragraph

(1)shall apply to a determination under this clause in the same manner as they apply to a determination under paragraph (1)(A)(ii); and if the Attorney General determined under paragraph (1)(A)(ii) that any jobs satisfying the requirement of such paragraph were created, the number of those jobs shall be subtracted from the number of jobs otherwise needed to satisfy the requirement of this clause; and considering all such enterprises together, on the date on which the determination is made, the eligible alien is in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act ( 8 U.S.C. 1186b(d)(1)(B) ), except that— this clause shall apply only if the Attorney General made an adverse determination with respect to the eligible alien under paragraph (1)(A)(iii); and if the Attorney General determined under paragraph (1)(A)(iii) that any capital amount was invested that could be credited towards compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Immigration and Nationality Act ( 8 U.S.C. 1186b(d)(1)(B) ), such amount shall be subtracted from the amount of capital otherwise needed to satisfy the requirement of this clause. Removal of conditional basis if favorable determination .— If the Attorney General renders an affirmative determination with respect to clauses

(ii)and

(iii)of subparagraph (E), and if the Attorney General renders a negative determination with respect to clause

(i)of such subparagraph, the Attorney General shall so notify the alien involved and shall remove the conditional basis of the alien’s status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immigration and Nationality Act ( 8 U.S.C. 1186b )) effective as of the second anniversary of the continuation, under paragraph (1)(F)(ii), of the conditional basis of the alien’s lawful admission for permanent residence. Requirements relating to adverse determinations.— Notice .— If the Attorney General renders an adverse determination under subparagraph (E), the Attorney General shall so notify the alien involved. The notice shall be in writing and shall state the factual basis for any adverse determination. The Attorney General shall provide the alien with an opportunity to submit evidence to rebut any adverse determination. If the Attorney General reverses all adverse determinations pursuant to such rebuttal, the Attorney General shall so notify the alien involved and shall remove the conditional basis of the alien’s status (and that of the alien’s spouse and children if it was obtained under section 216A of the Immigration and Nationality Act ( 8 U.S.C. 1186b )) effective as of the second anniversary of the continuation, under paragraph (1)(F)(ii), of the conditional basis of the alien’s lawful admission for permanent residence. Termination if adverse determination .— If the eligible alien’s rebuttal does not cause the Attorney General to reverse each adverse determination under subparagraph (E), the Attorney General shall so notify the alien involved and, subject to subsection (d), shall terminate the permanent resident status of the alien (and that of the alien’s spouse and children if it was obtained on a conditional basis under section 216A of the Immigration and Nationality Act ( 8 U.S.C. 1186b )). Hearing in Removal Proceeding .— Any alien whose permanent resident status is terminated under paragraph (1)(F)(iii) or (2)(G)(ii) of subsection

(c)may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General. Clarification With Respect to Children .— In the case of an alien who obtained the status of an alien lawfully admitted for permanent residence on a conditional basis before the date of the enactment of this Act [ Nov. 2, 2002 ] by virtue of being the child of an eligible alien described in subsection (b)(1), the alien shall be considered to be a child for purposes of this section regardless of any change in age or marital status after obtaining such status. Definition of Full-Time .— For purposes of this section, the term ‘full-time’ means a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.

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8 CFR 204.6(e)

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§ 11031

REMOVAL OF CONDITIONAL BASIS OF PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSES, AND CHILDREN.

Cite8 CFR 204.6(e)

Cites 5Cited by 0 across 0 sources