
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 8USC1186b]

 
                     TITLE 8--ALIENS AND NATIONALITY
 
                 CHAPTER 12--IMMIGRATION AND NATIONALITY
 
                       SUBCHAPTER II--IMMIGRATION
 
Part II--Admission Qualifications for Aliens; Travel Control of Citizens 
                               and Aliens
 
Sec. 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 establishment of the commercial enterprise was 
        intended solely as a means of evading the immigration laws of 
        the United States,
            (B)(i) a commercial enterprise was not established by the 
        alien,
            (ii) the alien did not invest or was not actively in the 
        process of investing the requisite capital; or
            (iii) the alien was not sustaining the actions described in 
        clause (i) or (ii) 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.
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    \1\ So in original.
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        (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--
            (A) a commercial enterprise was established by the alien;
            (B) the alien invested or was actively in the process of 
        investing the requisite capital; and
            (C) the alien sustained the actions described in 
        subparagraphs (A) and (B) throughout the period of the alien's 
        residence in the United States.

                   (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.

(June 27, 1952, ch. 477, title II, ch. 2, Sec. 216A, as added Pub. L. 
101-649, title I, Sec. 121(b)(1), Nov. 29, 1990, 104 Stat. 4990; amended 
Pub. L. 102-232, title III, Sec. 302(b)(3), Dec. 12, 1991, 105 Stat. 
1743; Pub. L. 104-208, div. C, title III, Sec. 308(e)(8), Sept. 30, 
1996, 110 Stat. 3009-620.)


                               Amendments

    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, Sec. 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, Sec. 302(b)(3)(B), 
struck out ``obtaining the status of'' before ``lawful admission''.


                    Effective Date of 1996 Amendment

    Amendment by Pub. L. 104-208 effective, with certain transitional 
provisions, on the first day of the first month beginning more than 180 
days after Sept. 30, 1996, see section 309 of Pub. L. 104-208, set out 
as a note under section 1101 of this title.


                    Effective Date of 1991 Amendment

    Amendment by Pub. L. 102-232 effective as if included in the 
enactment of the Immigration Act of 1990, Pub. L. 101-649, see section 
310(1) of Pub. L. 102-232, set out as a note under section 1101 of this 
title.


                             Effective Date

    Section effective Oct. 1, 1991, and applicable beginning with fiscal 
year 1992, see section 161(a) of Pub. L. 101-649, set out as an 
Effective Date of 1990 Amendment note under section 1101 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 1227, 1255 of this title.
