8 U.S. Code § 1186b - Conditional permanent resident status for certain alien entrepreneurs, spouses, and children
Analien investor, alienspouse, and alien childshall 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.
At the time analien investor, alienspouse, or alien childobtains permanentresident status on a conditional basis under paragraph (1), theSecretary 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.
Anyalien whosepermanent 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 theSecretary of Homeland Security to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.
If theSecretary of Homeland Security determines that such facts and information are not true, theSecretary of Homeland Security shall so notify the alieninvolved and, subject to subparagraph (D), shall terminate the permanentresident status of an alien investor, alienspouse, or alien childas of the date of the determination.
Anyalien whosepermanent 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 theSecretary 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.
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 thealien investor’s lawful admission for permanentresidence.
Aliens described in subclauses (I)(bb) and (II) ofsection 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.
Such a petition may be considered if filed after such date, but only if thealien establishes to the satisfaction of theSecretary 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 analien 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), theAttorney General may stay such removal proceedings against an alienpending the filing of the petition under subparagraph (B).
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 theDepartment of Homeland Security, designated by theSecretary of Homeland Security, which is convenient to the parties involved.
For purposes of subchapter III, in the case of analien who is in theUnited States as a lawful permanentresident on a conditional basis under this section, the alienshall be considered to have been admitted as an alienlawfully admitted for permanent residence and to be in the United Statesas an alienlawfully admitted to the United Statesfor permanentresidence.
2022—Pub. L. 117–103, § 104(a)(2), substituted “investor” for “entrepreneur” wherever appearing.
Pub. L. 117–103, § 104(a)(1), substituted “Secretary of Homeland Security” for“Attorney General” wherever appearing, except in subsec. (d)(2)(C).
Subsec. (a)(1).Pub. L. 117–103, § 104(a)(3), amended par. (1) generally. Prior to amendment, text read as follows: “Notwithstanding any other provision of this chapter, an alien investor(as defined in subsection (f)(1)), alienspouse, and alien child(as defined in subsection (f)(2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.”
Subsec. (b).Pub. L. 117–103, § 104(a)(4)(A), substituted “investment” for “entrepreneurship” in heading.
Subsec. (b)(1)(B).Pub. L. 117–103, § 104(a)(4)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows:
“(B)(i) thealien did not invest, or was not actively in the process of investing, the requisite capital; or
“(ii) thealien was not sustaining the actions described in clause (i) throughout the period of thealien’sresidence in theUnited States; or”.
Subsec. (c).Pub. L. 117–103, § 104(a)(5)(A), struck out “of timely petition and interview” after “Requirements” in heading.
Subsec. (c)(1).Pub. L. 117–103, § 104(a)(5)(B)(i), substituted “Except as provided in paragraph (3)(D), in order” for “In order” in introductory provisions.
Subsec. (c)(1)(A).Pub. L. 117–103, § 104(a)(5)(B)(ii), substituted “shall submit” for “must submit” and semicolon at end for “, and”.
Subsec. (c)(1)(B).Pub. L. 117–103, § 104(a)(5)(B)(iii), substituted “shall appear” for “must appear”, “Department of Homeland Security” for“Service”, and “; and” for period at end.
Subsec. (c)(1)(C).Pub. L. 117–103, § 104(a)(5)(B)(iv), added subpar. (C).
Subsec. (c)(3)(A).Pub. L. 117–103, § 104(a)(5)(C)(i), struck out “the” before “such filing” in concluding provisions.
Subsec. (c)(3)(B).Pub. L. 117–103, § 104(a)(5)(C)(ii), amended subpar. (B) generally. Prior to amendment, text read as follows: “If theSecretary of Homeland Security determines that such facts and information are true, theSecretary of Homeland Security shall so notify the alieninvolved and shall remove the conditional basis of the alien’s status effective as of the second anniversary of the alien’s lawful admission for permanentresidence.”
Subsec. (d)(1)(A).Pub. L. 117–103, § 104(a)(6)(A)(i), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows:
“(A)(i) invested, or is actively in the process of investing, the requisite capital; and
“(ii) sustained the actions described in clause (i) throughout the period of thealien’sresidence in theUnited States; and”.
Subsec. (d)(1)(B), (C).Pub. L. 117–103, § 104(a)(6)(A)(ii), (iii), added subpar. (B) and redesignated former subpar. (B) as (C).
Subsec. (d)(2)(A).Pub. L. 117–103, § 104(a)(6)(B), amended subpar. (A) generally. Prior to amendment, text read as follows: “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 permanentresidence.”
Subsec. (d)(3).Pub. L. 117–103, § 104(a)(6)(C), designated existing provisions as subpar. (A), inserted heading, substituted “Department of Homeland Security” for“Service”, struck out “TheSecretary of Homeland Security, in theSecretary of Homeland Security’s discretion, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate.” after “parties involved.”, and added subpar. (B).
Subsec. (f)(3).Pub. L. 117–103, § 104(a)(7), substituted “any entity formed for the purpose of doing for-profit business” for “a limited partnership”.
2002—Subsec. (b)(1)(A).Pub. L. 107–273, § 11036(b)(1)(A), substituted “investment in” for “establishment of”.
Subsec. (b)(1)(B).Pub. L. 107–273, § 11036(b)(1)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows:
“(B)(i) acommercial enterprise was not established by the alien,
“(ii) thealien did not invest or was not actively in the process of investing the requisite capital; or
“(iii) thealien was not sustaining the actions described in clause (i) or (ii) throughout the period of thealien’sresidence in theUnited States, or”.
Subsec. (d)(1).Pub. L. 107–273, § 11036(b)(2), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “Each petition under subsection (c)(1)(A) of this section shall contain facts and information demonstrating that—
“(A) acommercial enterprise was established by the alien;
“(B) thealien invested or was actively in the process of investing the requisite capital; and
“(C) thealien sustained the actions described in subparagraphs (A) and (B) throughout the period of thealien’sresidence in theUnited States.”
Subsec. (f)(3).Pub. L. 107–273, § 11036(b)(3), added par. (3).
1996—Subsec. (b)(2).Pub. L. 104–208 substituted “removal” for “deportation” in heading and “remove” for “deport” in text.
Subsec. (c)(2)(B).Pub. L. 104–208 substituted “removal” for “deportation” in heading and text.
Subsec. (c)(3)(D).Pub. L. 104–208 substituted “removal” for “deportation” in heading and “remove” for “deport” in text.
Subsec. (d)(2)(C).Pub. L. 104–208 substituted “removal” for “deportation” wherever appearing in heading and text.
1991—Subsec. (c)(2)(A).Pub. L. 102–232, § 302(b)(3)(A), in closing provisions inserted parenthetical provision relating to alien’s spouse and children.
Subsecs. (c)(3)(B), (d)(2)(A).Pub. L. 102–232, § 302(b)(3)(B), struck out “obtaining the status of” before “lawful admission”.
Pub. L. 117–103, div. BB, § 104(b),Mar. 15, 2022,136 Stat. 1102, provided that:
Amendment byPub. L. 107–273 effectiveNov. 2, 2002 and applicable to alienshaving certain petitions pending under this section orsection 1154 of this title on or afterNov. 2, 2002, seesection 11036(c) of Pub. L. 107–273, set out as a note undersection 1153 of this title.
Amendment byPub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days afterSept. 30, 1996, seesection 309 of Pub. L. 104–208, set out as a note undersection 1101 of this title.
Amendment byPub. L. 102–232 effective as if included in the enactment of theImmigration Act of 1990,Pub. L. 101–649, seesection 310(1) of Pub. L. 102–232, set out as a note undersection 1101 of this title.
Section effectiveOct. 1, 1991, and applicable beginning with fiscal year 1992, seesection 161(a) of Pub. L. 101–649, set out as an Effective Date of 1990 Amendment note undersection 1101 of this title.
For abolition of Immigration andNaturalization Service, transfer of functions, and treatment of related references, see note set out undersection 1551 of this title.
Pub. L. 107–273, div. C, title I, §§ 11031–11034,Nov. 2, 2002,116 Stat. 1837–1846, provided that:
“The Immigration andNaturalization Serviceshall promulgate regulations to implement this chapter [chapter 1 (§§ 11031–11034) of subtitle B of title I of div. C ofPub. L. 107–273, enacting this note] not later than 120 days after the date of enactment of this Act [Nov. 2, 2002]. Until such regulations are promulgated, the Attorney Generalshall not deny a petition filed or pending under section 216A(c)(1)(A) of theImmigration and Nationality Act (8 U.S.C. 1186b(c)(1)(A)) that relates to an eligible aliendescribed in section 11031, or on an application filed or pending under section 245 of such Act (8 U.S.C. 1255) that relates to an eligible aliendescribed in section 11032. Until such regulations are promulgated, the Attorney Generalshall not initiate or proceed with removal proceedings under section 240 of theImmigration and Nationality Act (8 U.S.C. 1229a) that relate to an eligible aliendescribed in section 11031 or 11032.
“Except as otherwise provided, the terms used in this chapter shall have the meaning given such terms in section 101(b) of theImmigration and Nationality Act (8 U.S.C. 1101(b)).”