§ 4805 : CONDITIONAL PERMANENT RESIDENT STATUS FOR EMPLOYMENT-BASED IMMIGRANTS, SPOUSES, AND CHILDREN.

IN GENERAL.—

1.

CONDITIONAL BASIS FOR STATUS.—Notwithstanding any other provision of this Act, employment-based immigrants (as defined in subsection (f) (1) or (2)), alien spouses, and alien children (as defined in subsection (f)(3)) 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 employment-based immigrant, 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 the alien, 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 an employment-based immigrant, alien spouse, or alien child, at or about the beginning of the 90-day period described in subsection (d)(3), of the requirements of subsection (c)(1).

C.

EFFECT OF FAILURE TO PROVIDE NOTICE.—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 an employment-based immigrant, alien spouse, or alien child.

TERMINATION OF STATUS IF FINDING THAT QUALIFYING EMPLOYMENT IMPROPER.—

1.

ALIEN INVESTOR.—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 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.

subject to the exception in subsection (d)(4), the alien was otherwise not conforming to the requirements under section 203(b)(5), the Secretary shall so notify the alien investor and, subject to paragraph (3), 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.

EMPLOYEE OF A FEDERAL NATIONAL SECURITY, SCIENCE, AND TECHNOLOGY LABORATORY, CENTER OR AGENCY.—In the case of an employee of a Federal national security, science, and technology laboratory, center, or agency (as defined pursuant to section 203(b)(2)(C)) with permanent resident status on a conditional basis under subsection (a), if the Secretary of Homeland Security, in consultation with the relevant employing department or agency, determines, before the first anniversary of the alien’s obtaining the status of lawful admission for permanent residence, that—

A.

the qualifying employment was intended as a means of evading the immigration laws of the United States;

B.

the alien has not completed or is not likely to complete 12 months of qualifying continuous employment; or

C.

the alien did not otherwise conform with the requirements of section 203(b)(2), the Secretary shall so notify the alien involved and, subject to paragraph (3), shall terminate the permanent resident status of the alien (and the alien spouse and alien child) involved as of the date of the determination.

3.

HEARING IN REMOVAL PROCEEDING.—Any alien whose permanent resident status is terminated under paragraph (1) or (2) 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) or (2), as appropriate, is met.

REQUIREMENTS OF TIMELY PETITION AND INTERVIEW FOR REMOVAL OF CONDITION.—

1.

IN GENERAL.—

A.

PETITION AND INTERVIEW.—In order for the conditional basis established under subsection (a) for an employment-based immigrant, alien spouse, or alien child to be removed—

i.

the employment-based immigrant shall submit to the Secretary of Homeland Security, during the period described in subsection (d)(3), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in paragraph (1) or (2) of subsection (d), as appropriate; and

ii.

in accordance with subsection (d)(3), the employment-based immigrant must appear for a personal interview before an officer or employee of U.S. Citizenship and Immigration Services respecting such facts and information.

B.

SEPARATE PETITION NOT REQUIRED.—An alien spouse or alien child shall not be required to file separate petitions under subparagraph (A)(i) if the employment-based immigrant’s petition includes such alien spouse or alien child.

C.

EFFECT ON SPOUSE OR CHILD.—If the alien spouse or alien child obtains permanent residence on a conditional basis after the employment-based immigrant files a petition under subparagraph (A)(i)—

i.

the conditional basis of the permanent residence of the alien spouse or alien child shall be removed upon approval of the employment-based immigrant’s petition under this subsection;

ii.

the permanent residence of the alien spouse or alien child shall be unconditional if—

I.

the employment-based immigrant’s petition is approved before the date on which the spouse or child obtains permanent residence; or

II.

the employment-based immigrant dies after the approval of a petition under section 203(b)(5); and

iii.

the alien child shall not be deemed ineligible for approval under section 203(b)(5) or removal of conditions under this section if the alien child reaches 21 years of age during—

I.

the pendency of the employment-based immigrant’s petition under section 203(b)(5); or

II.

conditional residency under such section.

D.

ADDITIONAL FEE.—Notwithstanding any other provision under this section, the Secretary may require the employment-based immigrant to pay an additional fee for a petition filed under subparagraph (A)(i) that includes the alien’s spouse and child or children.

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 employment-based immigrant fails to appear at the interview described in paragraph (1)(B) (if required under subsection (d)(4)), 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 216) 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 employment-based immigrant appears at any interview described in paragraph (1)(B), the Secretary of Homeland Security shall make a determination, not later than 90 days after the date of such filing or interview (whichever is later), as to whether the facts and information described in paragraph (1) or (2) of subsection (d), as appropriate, and alleged in the petition are true.

B.

REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DETERMINATION.—

i.

HEADER.—If the Secretary of Homeland Security determines with respect to a petition filed by an alien investor that such facts and information are true, the Secretary shall so notify the alien investor 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.

ii.

REMOVAL OF CONDITIONAL BASIS FOR EMPLOYEE OF A FEDERAL NATIONAL SECURITY, SCIENCE, AND TECHNOLOGY LABORATORY, CENTER OR AGENCY.—If the Secretary of Homeland Security determines with respect to a petition filed by an employee of a Federal national security, science, and technology laboratory, center, or agency that such facts and information are true, the Secretary shall so notify the alien and shall remove the conditional basis of the alien’s status effective as of the first anniversary of the alien’s lawful admission for permanent residence.

C.

TERMINATION IF ADVERSE DETERMINATION.—If the Secretary of Homeland Security determines that such facts and information are not true, the Secretary shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an employment-based immigrant, 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.

DETAILS OF PETITION AND INTERVIEW.—

1.

CONTENTS OF PETITION BY ALIEN INVESTOR.—Each petition filed by an alien investor under section (c)(1)(A) 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.

except as provided in paragraph (4), is otherwise conforming to the requirements under section 203(b)(5).

2.

CONTENTS OF PETITION BY EMPLOYEE OF A FEDERAL NATIONAL SECURITY, SCIENCE, AND TECHNOLOGY LABORATORY, CENTER, OR AGENCY.—Each petition under subsection (c)(1)(A) filed by an employee of a Federal national security, science, and technology laboratory, center, or agency shall contain facts and information demonstrating that the alien is conforming to the requirements of section 203(b)(2).

3.

PERIOD FOR FILING PETITION.—

A.

90-DAY PERIOD BEFORE ANNIVERSARY.—Except as provided in subparagraph (B), the petition under subsection (c)(1)(A) must be filed as follows:

i.

In the case of an alien investor, during the 90-day period before the second anniversary of the alien’s lawful admission for permanent residence.

ii.

In the case of an employee of a Federal national security, science, and technology laboratory, center, or agency, during the 90-day period before the first anniversary of the alien’s lawful admission for permanent residence.

B.

LATE PETITIONS.—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).

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 Secretary of Homeland Security may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B).

4.

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 U.S. Citizenship and Immigration Services, designated by the Secretary of Homeland Security, which is convenient to the parties involved. The Secretary, in the discretion of the Secretary, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate.

5.

SPECIAL RULE FOR ALIEN INVESTORS IN A REGIONAL CENTER.—Each petition under subsection (c)(1)(A) filed by an alien investor who invests in accordance with section 203(b)(5)(E) shall contain facts and information demonstrating that the alien is complying with the requirements under section 203(b)(5), except—

A.

the alien shall not be subject to the requirements under section 203(b)(5)(A)(ii); and

B.

the petition shall contain the most recent financial statement filed by the regional center in which the alien has invested in accordance with section 203(b)(5)(G).

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, if the alien has had the conditional basis removed pursuant to this section.

FRAUD, MISREPRESENTATION, CRIMINAL MISUSE, OR THREATS TO THE PUBLIC SAFETY OR NATIONAL SECURITY.—If the Secretary of Homeland Security determines, in his or her sole and unreviewable discretion, that the conditional permanent resident status granted to an employment-based immigrant under subsection (a), or to an alien researcher described in section 203(b)(2)(A)(ii) is contrary to the national interest of the United States for reasons relating to fraud, misrepresentation, criminal misuse, or threats to national security, the Secretary shall—

1.

notify the immigrant involved of such determination; and

2.

terminate the permanent resident status of the immigrant involved (and the alien spouse and alien children of such immigrant) as of the date of such determination.

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 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 investor or an employee of a Federal national security, science, and technology laboratory, center, or agency.

3.

The term commercial enterprise includes a limited partnership.

4.

The term employment-based immigrant means an alien described in paragraph (1) or (5).

5.

The term employee of a Federal national security, science, and technology laboratory, center, or agency 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)(2)(A)(ii).