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U.S. Code as of:
01/03/05
Section 1186b. Conditional permanent resident status for certain alien entrepreneurs, spouses, and children
(a) In general
(1) Conditional basis for status
Notwithstanding any other provision of this chapter, an alien
entrepreneur (as defined in subsection (f)(1) of this section),
alien spouse, and alien child (as defined in subsection (f)(2) of
this section) 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.
(2) Notice of requirements
(A) At time of obtaining permanent residence
At the time an alien entrepreneur, alien spouse, or alien
child 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 requirements of subsection
(c)(1) of this section to have the conditional basis of such
status removed.
(B) At time of required petition
In addition, the Attorney 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 this section, of the requirements of subsection
(c)(1) of this section.
(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) of this
section, 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 investment in the commercial enterprise was intended
solely as a means of evading the immigration laws of the United
States,
(B)(i) the alien did not invest, or was not actively in the
process of investing, the requisite capital; or
(ii) the alien was not sustaining the actions described in
clause (i) 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 1153(b)(5) of this title,
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 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 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) of this section 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) of
this section, 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) of
this section, and
(B) in accordance with subsection (d)(3) of this section, 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) of this section.
(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) of this section, 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) of this
section),
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 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 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 (!1) or interview (whichever is
later), as to whether the facts and information described in
subsection (d)(1) of this section 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 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 Attorney General to establish,
by a preponderance of the evidence, that the facts and
information described in subsection (d)(1) of this section 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) of this section shall
contain facts and information demonstrating that the alien -
(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 the alien's residence in the United States; and
(B) is otherwise conforming to the requirements of section
1153(b)(5) of this title.
(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) of this section 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 removal
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
The interview under subsection (c)(1)(B) of this section shall
be conducted within 90 days after the date of submitting a
petition under subsection (c)(1)(A) of this section 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 subchapter III of this chapter, 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
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
entrepreneur.
(3) The term "commercial enterprise" includes a limited
partnership.
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