[House Report 114-614]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-614
======================================================================
OVERSEE VISA INTEGRITY WITH STAKEHOLDER ADVISORIES ACT
_______
June 10, 2016.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 3636]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3636) to amend the Immigration and Nationality Act
to allow labor organizations and management organizations to
receive the results of visa petitions about which such
organizations have submitted advisory opinions, and for other
purposes, having considered the same, reports favorably thereon
with amendments and recommends that the bill as amended do
pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 5
Committee Consideration.......................................... 6
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 6
New Budget Authority and Tax Expenditures........................ 6
Congressional Budget Office Cost Estimate........................ 6
Duplication of Federal Programs.................................. 7
Disclosure of Directed Rule Makings.............................. 7
Performance Goals and Objectives................................. 7
Advisory on Earmarks............................................. 8
Section-by-Section Analysis...................................... 8
Changes in Existing Law Made by the Bill, as Reported............ 8
The Amendments
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Oversee Visa Integrity with
Stakeholder Advisories Act'' or the ``O-VISA Act''.
SEC. 2. ALLOWING CERTAIN ORGANIZATIONS TO RECEIVE THE RESULTS OF VISA
PETITIONS.
Section 214(c)(3) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(3)) is amended--
(1) by striking ``Attorney General'' each place it appears
and inserting ``Secretary of Homeland Security''; and
(2) in the first sentence of the matter following
subparagraph (B)--
(A) by striking ``and (iv)'' and inserting ``(iv)'';
and
(B) by striking the period at the end and inserting
the following: ``, and (v) upon making the decision,
the Secretary of Homeland Security shall provide a copy
of the decision to each organization with which the
Secretary consulted under subparagraph (A) or (B).''.
Amend the title so as to read:
A bill to amend the Immigration and Nationality Act to
allow labor organizations and management organizations to
receive the results of visa petitions about which such
organizations have submitted advisory opinions.
Purpose and Summary
H.R. 3636 ensures that labor organizations and management
organizations receive the results of petitions for O
nonimmigrant status (for aliens with extraordinary abilities in
the sciences, arts, education, business, or athletics and those
accompanying and assisting in the aliens' artistic or athletic
performances in the United States) about which such
organizations submitted advisory opinions to U.S. Citizenship
and Immigration Services.
Background and Need for the Legislation
O VISAS
[An O-1 visa is a temporary visa for an alien who] has
extraordinary ability in the sciences, arts, education,
business, or athletics which has been demonstrated by sustained
national or international acclaim or, with regard to motion
picture and television productions a demonstrated record of
extraordinary achievement, and whose achievements have been
recognized in the field through extensive documentation, and
seeks to enter the United States to continue work in the area
of extraordinary ability. . . .\1\
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\1\Section 101(a)(15)(O)(i) of the Immigration and Nationality Act
(INA).
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An O-2 visa is a temporary visa for an alien who:
(I)
Lseeks to enter the United States temporarily and
solely for the purpose of accompanying and assisting in
the artistic or athletic performance by an [O-1] alien
who is admitted . . . for a specific event or events,
(II)
Lis an integral part of such actual performance,
[and]
(III)
L(a) has critical skills and experience with such
alien which are not of a general nature and which
cannot be performed by other individuals, or
L(b) in the case of a motion picture or television
production, has skills and experience with such alien
which are not of a general nature and which are
critical either based on a pre-existing longstanding
working relationship or, with respect to the specific
production, because significant production (including
pre- and post-production work) will take place both
inside and outside the United States and the continuing
participation of the alien is essential to the
successful completion of the production. . . .\2\
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\2\Section 101(a)(15)(O)(ii) of the INA.
U.S. Citizenship and Immigration Services' (USCIS) approval
rate in fiscal year 2013 for O-1 petitions was 96% and for O-2
petitions was 98%.\3\
---------------------------------------------------------------------------
\3\See USCIS, U.S. Department of Homeland Security (DHS), USCIS
Responses to Questions from Chairman Goodlatte and Ranking Member
Conyers at 1 (July 23, 2014).
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CONSULTATIONS
Employers and other petitioners seeking O visas for aliens
must\4\ meet a ``consultation'' requirement designed to protect
American workers by ensuring that truly extraordinary aliens
are able to receive O-1 visas.\5\ In general, petitioners
filing O-1 petitions must include a written\6\ ``advisory
opinion from a peer group\7\ (or other person or persons of its
choosing, which may include a labor organization) with
expertise in the specific field involved.''\8\ O-2 petitions
must be filed with ``an advisory opinion from a labor
organization with expertise in the skill area involved.''\9\
With respect to aliens seeking entry for motion picture or
television productions, consultation must be with ``the
appropriate union representing the alien's occupational peers
and a management organization in the area of the alien's
ability. . . .''\10\
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\4\See 8 C.F.R. sec. 214.2(o)(5)(i).
\5\See section 214(c)(3) & (6) of the INA.
\6\See 8 C.F.R. sec. 214.2(o)(5)(i)(B).
\7\``Peer group means a group or organization which is comprised of
practitioners of the alien's occupation. If there is a collective
bargaining representative of an employer's employees in the
occupational classification for which the alien is being sought, such a
representative may be considered the appropriate peer group for
purposes of consultation.'' 8 C.F.R. sec. 214.2(o)(3)(ii).
\8\Section 214(c)(6)(A)(i) of the INA.
\9\Section 214(c)(6)(A)(ii) of the INA.
\10\Section 214(c)(3)(A) of the INA (for O-1 visas, with similar
standards for O-2 visas (see section 214(c)(3)(B) of the INA).
---------------------------------------------------------------------------
The INA provides that in the case of an alien seeking entry
for a motion picture or television production ``any opinion . .
. shall only be advisory . . . any such opinion that recommends
denial must be in writing . . . in making the decision the
[Secretary of Homeland Security] shall consider the exigencies
and scheduling of the production, and [the Secretary of
Homeland Security] shall append to the decision any such
opinion.''\11\
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\11\Section 214(c)(3) of the INA (The consultation requirement is
waived ``in the case of aliens who have been admitted as [O-1
nonimmigrants] because of extraordinary ability in the arts and who
seek readmission to perform similar services within 2 years after the
date of a consultation. . . .'').
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USCIS regulations provide that:
[For O-1 visas, i]f the advisory opinion is not
favorable to the petitioner, the advisory opinion must
set forth a specific statement of facts which supports
the conclusion reached in the opinion. If the advisory
opinion is favorable to the petitioner, it should
describe the alien's ability and achievements in the
field of endeavor, describe the nature of the duties to
be performed, and state whether the position requires
the services of an alien of extraordinary ability. A
consulting organization may also submit a letter of no
objection in lieu of the above if it has no objection
to the approval of the petition. . . .
. . . .
In the case of an alien of extraordinary achievement
who will be working on a motion picture or television
production, consultation shall be made with the
appropriate union representing the alien's occupational
peers and a management organization in the area of the
alien's ability. If an advisory opinion is not
favorable to the petitioner, the advisory opinion must
set forth a specific statement of facts which supports
the conclusion reached in the opinion. If the advisory
opinion is favorable to the petitioner, the written
advisory opinion from the labor and management
organizations should describe the alien's achievements
in the motion picture or television field and state
whether the position requires the services of an alien
of extraordinary achievement. If a consulting
organization has no objection to the approval of the
petition, the organization may submit a letter of no
objection in lieu of the above.
. . . .
Consultation with a labor organization with expertise
in the skill area involved is required for an O-2 alien
accompanying an O-1 alien of extraordinary ability. In
the case of an O-2 alien seeking entry for a motion
picture or television production, consultation with a
labor organization and a management organization in the
area of the alien's ability is required. If an advisory
opinion is not favorable to the petitioner, the
advisory opinion must set forth a specific statement of
facts which supports the conclusion reached in the
opinion. If the advisory opinion is favorable to the
petitioner, the opinion provided by the labor and/or
management organization should describe the alien's
essentiality to, and working relationship with, the O-1
artist or athlete and state whether there are available
U.S. workers who can perform the support services. If
the alien will accompany an O-1 alien involved in a
motion picture or television production, the advisory
opinion should address the alien's skills and
experience with the O-1 alien and whether the alien has
a pre-existing longstanding working relationship with
the O-1 alien, or whether significant production will
take place in the United States and abroad and if the
continuing participation of the alien is essential to
the successful completion of the production. A
consulting organization may also submit a letter of no
objection in lieu of the above if it has no objection
to the approval of the petition.\12\
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\12\8 C.F.R. sec. 214.2(o)(5)(ii)(A), (iii), (iv).
In addition, USCIS regulations provide that ``[i]n those
cases where it is established by the petitioner that an
appropriate peer group, including a labor organization, does
not exist, the Service shall render a decision on the evidence
of record.''\13\
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\13\8 C.F.R. sec. 214.2(o)(5)(i)(G).
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USCIS has noted to the Committee that:
[T]he consultations are only one piece of evidence
reviewed in the totality of all the information
provided during the course of an adjudication . . .
[U]nder the preponderance of evidence standard, a
petition with a negative consultation could still be
approved if the totality of the evidence established
that, more likely than not, the beneficiary was
eligible for the benefit sought. Likewise, a positive
consultation may not necessarily lead to approval of
the petition if the totality of the evidence
established that, more likely than not, the beneficiary
was not eligible for the benefit sought.''\14\
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\14\USCIS Responses to Questions from Chairman Goodlatte and
Ranking Member Conyers at 3.
As to how many of these petitions were objected to by an
organization providing an advisory opinion and how many were
approved despite such objections, USCIS indicated that ``[o]ur
database does not capture the information requested.''\15\
---------------------------------------------------------------------------
\15\Id. at 1.
---------------------------------------------------------------------------
USCIS does not provide notice as to the outcome of
adjudications to the organizations that provide advisory
opinions. It believes that ``[s]ince the petitions are
contained with a system of records under the Privacy Act, 5 USC
552a, USCIS is prohibited from sharing information regarding
the results of an adjudication to third parties absent a
release from the petitioner.''\16\
---------------------------------------------------------------------------
\16\Id. at 2.
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The Directors Guild of America (DGA) is ``the organization
charged with providing O-1 and O-2 advisory opinions on behalf
of directors, assistant directors, associate directors, unit
production managers, stage managers and production
assistants.''\17\ The DGA has raised concerns regarding
``[p]etitioners who, upon receipt of an objection from one
labor organization, seek a consultation letter from a different
organization [or] remove or revise the evidence in their
petition to omit the basis for DGA's objection before
submitting the petition to USCIS [or p]etitioners who
physically alter DGA letters to change their content [or] draft
fabricated letters and forge DGA signatures. . . .''\18\
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\17\Letter from Matthew Bowers, Assistant General Counsel, DGA, to
Mallory Hurteau, USCIS, DHS at 1 (Feb. 22, 2013).
\18\DGA, Abuse of ``O'' Visa Program Jeopardizes Jobs in the Motion
Picture Industry.
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H.R. 3636
H.R. 3636 provides that upon making the decision as to
whether to approve an O visa petition regarding motion picture
and television productions, ``the Secretary of Homeland
Security shall provide a copy of the decision to the
organizations consulted with. . . .''
Hearings
The Committee on the Judiciary held no hearings on H.R.
3636.
Committee Consideration
On May 25, 2016, the Committee met in open session and
ordered the bill H.R. 3636 favorably reported, with an
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 3636.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3636, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 9, 2016.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3636, the
``Oversee Visa Integrity with Stakeholder Advisories Act.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Keith Hall,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 3636--Oversee Visa Integrity with Stakeholder Advisories Act.
As ordered reported by the House Committee on the Judiciary
on May 25, 2016.
Foreign people with records of extraordinary achievement in
motion pictures or television productions may apply for visas
(known as ``O'' visas) for temporary admission to the United
States. In evaluating petitions for these people and their
associates, the Department of Homeland Security (DHS) must
consult with certain labor organizations before rendering a
decision. H.R. 3636 would require DHS to provide a copy of the
decision to each such organization that it consulted.
Based on information from DHS, CBO estimates that enacting
H.R. 3636 would have no significant cost to the Federal
Government. Any such costs would be paid from fees collected by
DHS and would be considered direct spending, so pay-as-you-go
procedures would apply to the bill. The legislation would not
affect revenues. CBO estimates that enacting H.R. 3636 would
not increase net direct spending or on-budget deficits in any
of the four consecutive 10-year periods beginning in 2027.
H.R. 3636 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Assistant Director
for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 3636 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 3636 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
3636 allows labor organizations and management organizations to
receive the results of petitions for O nonimmigrant status (for
aliens with extraordinary abilities in the sciences, arts,
education, business, or athletics and those accompanying and
assisting in the aliens' artistic or athletic performances in
the United States) about which such organizations submitted
advisory opinions to USCIS.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 3636 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
Section 1. Short title. Section 1 sets forth the short
title of the bill as the ``Oversee Visa Integrity with
Stakeholder Advisories Act'' or the ``O-VISA Act''.
Section 2. Allowing certain organizations to receive the
results of visa petitions. Section 2 amends section 214(c)(3)
of the Immigration and Nationality Act (8 U.S.C. Sec. 1184(c)
(3)). It strikes ``Attorney General'' each place it appears and
inserts ``Secretary of Homeland Security.'' It requires that
``upon making the decision [to approve or deny an O visa
petition], the Secretary of Homeland Security shall provide a
copy of the decision to each organization with which the
Secretary consulted'' pursuant to subparagraphs (A) or (B) [of
section 214(c)(3)].
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE II--IMMIGRATION
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
admission of nonimmigrants
Sec. 214. (a)(1) The admission to the United States of any
alien as a nonimmigrant shall be for such time and under such
conditions as the Attorney General may by regulations
prescribe, including when he deems necessary the giving of a
bond with sufficient surety in such sum and containing such
conditions as the Attorney General shall prescribe, to insure
that at the expiration of such time or upon failure to maintain
the status under which he was admitted, or to maintain any
status subsequently acquired under section 248, such alien will
depart from the United States. No alien admitted to Guam or the
Commonwealth of the Northern Mariana Islands without a visa
pursuant to section 212(l) may be authorized to enter or stay
in the United States other than in Guam or the Commonwealth of
the Northern Mariana Islands or to remain in Guam or the
Commonwealth of the Northern Mariana Islands for a period
exceeding 45 days from date of admission to Guam or the
Commonwealth of the Northern Mariana Islands. No alien admitted
to the United States without a visa pursuant to section 217 may
be authorized to remain in the United States as a nonimmigrant
visitor for a period exceeding 90 days from the date of
admission.
(2)(A) The period of authorized status as a nonimmigrant
described in section 101(a)(15)(O) shall be for such period as
the Attorney General may specify in order to provide for the
event (or events) for which the nonimmigrant is admitted.
(B) The period of authorized status as a nonimmigrant
described in section 101(a)(15)(P) shall be for such period as
the Attorney General may specify in order to provide for the
competition, event, or performance for which the nonimmigrant
is admitted. In the case of nonimmigrants admitted as
individual athletes under section 101(a)(15)(P), the period of
authorized status may be for an initial period (not to exceed 5
years) during which the nonimmigrant will perform as an athlete
and such period may be extended by the Attorney General for an
additional period of up to 5 years.
(b) Every alien (other than a nonimmigrant described in
subparagraph (L) or (V) of section 101(a)(15), and other than a
nonimmigrant described in any provision of section
101(a)(15)(H)(i) except subclause (b1) of such section) shall
be presumed to be an immigrant until he establishes to the
satisfaction of the consular officer, at the time of
application for a visa, and the immigration officers, at the
time of application for admission, that he is entitled to a
nonimmigrant status under section 101(a)(15). An alien who is
an officer or employee of any foreign government or of any
international organization entitled to enjoy privileges,
exemptions, and immunities under the International
Organizations Immunities Act, or an alien who is the attendant,
servant, employee, or member of the immediate family of any
such alien shall not be entitled to apply for or receive an
immigrant visa, or to enter the United States as an immigrant
unless he executes a written waiver in the same form and
substance as is prescribed by section 247(b).
(c)(1) The question of importing any alien as a
nonimmigrant under subparagraph (H), (L), (O), or (P)(i) of
section 101(a)(15) (excluding nonimmigrants under section
101(a)(15)(H)(i)(b1)) in any specific case or specific cases
shall be determined by the Attorney General, after consultation
with appropriate agencies of the Government, upon petition of
the importing employer. Such petition shall be made and
approved before the visa is granted. The petition shall be in
such form and contain such information as the Attorney General
shall prescribe. The approval of such a petition shall not, of
itself, be construed as establishing that the alien is a
nonimmigrant. For purposes of this subsection with respect to
nonimmigrants described in section 101(a)(15)(H)(ii)(a), the
term ``appropriate agencies of Government'' means the
Department of Labor and includes the Department of Agriculture.
The provisions of section 218 shall apply to the question of
importing any alien as a nonimmigrant under section
101(a)(15)(H)(ii)(a).
(2)(A) The Attorney General shall provide for a procedure
under which an importing employer which meets requirements
established by the Attorney General may file a blanket petition
to import aliens as nonimmigrants described in section
101(a)(15)(L) instead of filing individual petitions under
paragraph (1) to import such aliens. Such procedure shall
permit the expedited processing of visas for admission of
aliens covered under such a petition.
(B) For purposes of section 101(a)(15)(L), an alien is
considered to be serving in a capacity involving specialized
knowledge with respect to a company if the alien has a special
knowledge of the company product and its application in
international markets or has an advanced level of knowledge of
processes and procedures of the company.
(C) The Attorney General shall provide a process for
reviewing and acting upon petitions under this subsection with
respect to nonimmigrants described in section 101(a)(15)(L)
within 30 days after the date a completed petition has been
filed.
(D) The period of authorized admission for--
(i) a nonimmigrant admitted to render services in a
managerial or executive capacity under section
101(a)(15)(L) shall not exceed 7 years, or
(ii) a nonimmigrant admitted to render services in
a capacity that involves specialized knowledge under
section 101(a)(15)(L) shall not exceed 5 years.
(E) In the case of an alien spouse admitted under section
101(a)(15)(L), who is accompanying or following to join a
principal alien admitted under such section, the Attorney
General shall authorize the alien spouse to engage in
employment in the United States and provide the spouse with an
``employment authorized'' endorsement or other appropriate work
permit.
(F) An alien who will serve in a capacity involving
specialized knowledge with respect to an employer for purposes
of section 101(a)(15)(L) and will be stationed primarily at the
worksite of an employer other than the petitioning employer or
its affiliate, subsidiary, or parent shall not be eligible for
classification under section 101(a)(15)(L) if--
(i) the alien will be controlled and supervised
principally by such unaffiliated employer; or
(ii) the placement of the alien at the worksite of
the unaffiliated employer is essentially an arrangement
to provide labor for hire for the unaffiliated
employer, rather than a placement in connection with
the provision of a product or service for which
specialized knowledge specific to the petitioning
employer is necessary.
(3) The [Attorney General] Secretary of Homeland Security
shall approve a petition--In the case of an alien seeking entry
for a motion picture or television production, (i) any opinion
under the previous sentence shall only be advisory, (ii) any
such opinion that recommends denial must be in writing, (iii)
in making the decision the [Attorney General] Secretary of
Homeland Security shall consider the exigencies and scheduling
of the production, and (iv) (iv) the [Attorney General]
Secretary of Homeland Security shall append to the decision any
such opinion. The [Attorney General] Secretary of Homeland
Security shall provide by regulation for the waiver of the
consultation requirement under subparagraph (A) in the case of
aliens who have been admitted as nonimmigrants under section
101(a)(15)(O)(i) because of extraordinary ability in the arts
and who seek readmission to perform similar services within 2
years after the date of a consultation under such subparagraph.
Not later than 5 days after the date such a waiver is provided,
the [Attorney General] Secretary of Homeland Security shall
forward a copy of the petition and all supporting documentation
to the national office of an appropriate labor organization.
(A) with respect to a nonimmigrant described in
section 101(a)(15)(O)(i) only after consultation in
accordance with paragraph (6) or, with respect to
aliens seeking entry for a motion picture or television
production, after consultation with the appropriate
union representing the alien's occupational peers and a
management organization in the area of the alien's
ability, or
(B) with respect to a nonimmigrant described in
section 101(a)(15)(O)(ii) after consultation in
accordance with paragraph (6) or, in the case of such
an alien seeking entry for a motion picture or
television production, after consultation with such a
labor organization and a management organization in the
area of the alien's ability.
In the case of an alien seeking entry for a motion picture or
television production, (i) any opinion under the previous
sentence shall only be advisory, (ii) any such opinion that
recommends denial must be in writing, (iii) in making the
decision the [Attorney General] Secretary of Homeland Security
shall consider the exigencies and scheduling of the production,
[and (iv)] (iv) the [Attorney General] Secretary of Homeland
Security shall append to the decision any such opinion[.], and
(v) upon making the decision, the Secretary of Homeland
Security shall provide a copy of the decision to each
organization with which the Secretary consulted under
subparagraph (A) or (B). The [Attorney General] Secretary of
Homeland Security shall provide by regulation for the waiver of
the consultation requirement under subparagraph (A) in the case
of aliens who have been admitted as nonimmigrants under section
101(a)(15)(O)(i) because of extraordinary ability in the arts
and who seek readmission to perform similar services within 2
years after the date of a consultation under such subparagraph.
Not later than 5 days after the date such a waiver is provided,
the [Attorney General] Secretary of Homeland Security shall
forward a copy of the petition and all supporting documentation
to the national office of an appropriate labor organization.
(4)(A) For purposes of section 101(a)(15)(P)(i)(a), an
alien is described in this subparagraph if the alien--
(i)(I) performs as an athlete, individually or as
part of a group or team, at an internationally
recognized level of performance;
(II) is a professional athlete, as defined in
section 204(i)(2);
(III) performs as an athlete, or as a coach, as
part of a team or franchise that is located in the
United States and a member of a foreign league or
association of 15 or more amateur sports teams, if--
(aa) the foreign league or association is
the highest level of amateur performance of
that sport in the relevant foreign country;
(bb) participation in such league or
association renders players ineligible, whether
on a temporary or permanent basis, to earn a
scholarship in, or participate in, that sport
at a college or university in the United States
under the rules of the National Collegiate
Athletic Association; and
(cc) a significant number of the
individuals who play in such league or
association are drafted by a major sports
league or a minor league affiliate of such a
sports league; or
(IV) is a professional athlete or amateur athlete
who performs individually or as part of a group in a
theatrical ice skating production; and
(ii) seeks to enter the United States temporarily
and solely for the purpose of performing--
(I) as such an athlete with respect to a
specific athletic competition; or
(II) in the case of an individual described
in clause (i)(IV), in a specific theatrical ice
skating production or tour.
(B)(i) For purposes of section 101(a)(15)(P)(i)(b), an
alien is described in this subparagraph if the alien--
(I) performs with or is an integral and essential
part of the performance of an entertainment group that
has (except as provided in clause (ii)) been recognized
internationally as being outstanding in the discipline
for a sustained and substantial period of time,
(II) in the case of a performer or entertainer,
except as provided in clause (iii), has had a sustained
and substantial relationship with that group
(ordinarily for at least one year) and provides
functions integral to the performance of the group, and
(III) seeks to enter the United States temporarily
and solely for the purpose of performing as such a
performer or entertainer or as an integral and
essential part of a performance.
(ii) In the case of an entertainment group that is
recognized nationally as being outstanding in its discipline
for a sustained and substantial period of time, the Attorney
General may, in consideration of special circumstances, waive
the international recognition requirement of clause (i)(I).
(iii)(I) The one-year relationship requirement of clause
(i)(II) shall not apply to 25 percent of the performers and
entertainers in a group.
(II) The Attorney General may waive such one-year
relationship requirement for an alien who because of illness or
unanticipated and exigent circumstances replaces an essential
member of the group and for an alien who augments the group by
performing a critical role.
(iv) The requirements of subclauses (I) and (II) of clause
(i) shall not apply to alien circus personnel who perform as
part of a circus or circus group or who constitute an integral
and essential part of the performance of such circus or circus
group, but only if such personnel are entering the United
States to join a circus that has been recognized nationally as
outstanding for a sustained and substantial period of time or
as part of such a circus.
(C) A person may petition the Attorney General for
classification of an alien as a nonimmigrant under section
101(a)(15)(P).
(D) The Attorney General shall approve petitions under this
subsection with respect to nonimmigrants described in clause
(i) or (iii) of section 101(a)(15)(P) only after consultation
in accordance with paragraph (6).
(E) The Attorney General shall approve petitions under this
subsection for nonimmigrants described in section
101(a)(15)(P)(ii) only after consultation with labor
organizations representing artists and entertainers in the
United States.
(F)(i) No nonimmigrant visa under section
101(a)(15)(P)(i)(a) shall be issued to any alien who is a
national of a country that is a state sponsor of international
terrorism unless the Secretary of State determines, in
consultation with the Secretary of Homeland Security and the
heads of other appropriate United States agencies, that such
alien does not pose a threat to the safety, national security,
or national interest of the United States. In making a
determination under this subparagraph, the Secretary of State
shall apply standards developed by the Secretary of State, in
consultation with the Secretary of Homeland Security and the
heads of other appropriate United States agencies, that are
applicable to the nationals of such states.
(ii) In this subparagraph, the term ``state sponsor of
international terrorism'' means any country the government of
which has been determined by the Secretary of State under any
of the laws specified in clause (iii) to have repeatedly
provided support for acts of international terrorism.
(iii) The laws specified in this clause are the following:
(I) Section 6(j)(1)(A) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) (or
successor statute).
(II) Section 40(d) of the Arms Export Control Act
(22 U.S.C. 2780(d)).
(III) Section 620A(a) of the Foreign Assistance Act
of 1961 (22 U.S.C. 2371(a)).
(G) The Secretary of Homeland Security shall permit a
petition under this subsection to seek classification of more
than 1 alien as a nonimmigrant under section
101(a)(15)(P)(i)(a).
(H) The Secretary of Homeland Security shall permit an
athlete, or the employer of an athlete, to seek admission to
the United States for such athlete under a provision of this
Act other than section 101(a)(15)(P)(i) if the athlete is
eligible under such other provision.
(5)(A) In the case of an alien who is provided nonimmigrant
status under section 101(a)(15)(H)(i)(b) or
101(a)(15)(H)(ii)(b) and who is dismissed from employment by
the employer before the end of the period of authorized
admission, the employer shall be liable for the reasonable
costs of return transportation of the alien abroad.
(B) In the case of an alien who is admitted to the United
States in nonimmigrant status under section 101(a)(15)(O) or
101(a)(15)(P) and whose employment terminates for reasons other
than voluntary resignation, the employer whose offer of
employment formed the basis of such nonimmigrant status and the
petitioner are jointly and severally liable for the reasonable
cost of return transportation of the alien abroad. The
petitioner shall provide assurance satisfactory to the Attorney
General that the reasonable cost of that transportation will be
provided.
(6)(A)(i) To meet the consultation requirement of paragraph
(3)(A) in the case of a petition for a nonimmigrant described
in section 101(a)(15)(O)(i) (other than with respect to aliens
seeking entry for a motion picture or television production),
the petitioner shall submit with the petition an advisory
opinion from a peer group (or other person or persons of its
choosing, which may include a labor organization) with
expertise in the specific field involved.
(ii) To meet the consultation requirement of paragraph
(3)(B) in the case of a petition for a nonimmigrant described
in section 101(a)(15)(O)(ii) (other than with respect to aliens
seeking entry for a motion picture or television production),
the petitioner shall submit with the petition an advisory
opinion from a labor organization with expertise in the skill
area involved.
(iii) To meet the consultation requirement of paragraph
(4)(D) in the case of a petition for a nonimmigrant described
in section 101(a)(15)(P)(i) or 101(a)(15)(P)(iii), the
petitioner shall submit with the petition an advisory opinion
from a labor organization with expertise in the specific field
of athletics or entertainment involved.
(B) To meet the consultation requirements of subparagraph
(A), unless the petitioner submits with the petition an
advisory opinion from an appropriate labor organization, the
Attorney General shall forward a copy of the petition and all
supporting documentation to the national office of an
appropriate labor organization within 5 days of the date of
receipt of the petition. If there is a collective bargaining
representative of an employer's employees in the occupational
classification for which the alien is being sought, that
representative shall be the appropriate labor organization.
(C) In those cases in which a petitioner described in
subparagraph (A) establishes that an appropriate peer group
(including a labor organization) does not exist, the Attorney
General shall adjudicate the petition without requiring an
advisory opinion.
(D) Any person or organization receiving a copy of a
petition described in subparagraph (A) and supporting documents
shall have no more than 15 days following the date of receipt
of such documents within which to submit a written advisory
opinion or comment or to provide a letter of no objection. Once
the 15-day period has expired and the petitioner has had an
opportunity, where appropriate, to supply rebuttal evidence,
the Attorney General shall adjudicate such petition in no more
than 14 days. The Attorney General may shorten any specified
time period for emergency reasons if no unreasonable burden
would be thus imposed on any participant in the process.
(E)(i) The Attorney General shall establish by regulation
expedited consultation procedures in the case of nonimmigrant
artists or entertainers described in section 101(a)(15)(O) or
101(a)(15)(P) to accommodate the exigencies and scheduling of a
given production or event.
(ii) The Attorney General shall establish by regulation
expedited consultation procedures in the case of nonimmigrant
athletes described in section 101(a)(15)(O)(i) or
101(a)(15)(P)(i) in the case of emergency circumstances
(including trades during a season).
(F) No consultation required under this subsection by the
Attorney General with a nongovernmental entity shall be
construed as permitting the Attorney General to delegate any
authority under this subsection to such an entity. The Attorney
General shall give such weight to advisory opinions provided
under this section as the Attorney General determines, in his
sole discretion, to be appropriate.
(7) If a petition is filed and denied under this
subsection, the Attorney General shall notify the petitioner of
the determination and the reasons for the denial and of the
process by which the petitioner may appeal the determination.
(8) The Attorney General shall submit annually to the
Committees on the Judiciary of the House of Representatives and
of the Senate a report describing, with respect to petitions
under each subcategory of subparagraphs (H), (O), (P), and (Q)
of section 101(a)(15) the following:
(A) The number of such petitions which have been
filed.
(B) The number of such petitions which have been
approved and the number of workers (by occupation)
included in such approved petitions.
(C) The number of such petitions which have been
denied and the number of workers (by occupation)
requested in such denied petitions.
(D) The number of such petitions which have been
withdrawn.
(E) The number of such petitions which are awaiting
final action.
(9)(A) The Attorney General shall impose a fee on an
employer (excluding any employer that is a primary or secondary
education institution, an institution of higher education, as
defined in section 101(a) of the Higher Education Act of 1965
(20 U.S.C. 1001(a), a nonprofit entity related to or affiliated
with any such institution, a nonprofit entity which engages in
established curriculum-related clinical training of students
registered at any such institution, a nonprofit research
organization, or a governmental research organization) filing
before a petition under paragraph (1)--
(i) initially to grant an alien nonimmigrant status
described in section 101(a)(15)(H)(i)(b);
(ii) to extend the stay of an alien having such
status (unless the employer previously has obtained an
extension for such alien); or
(iii) to obtain authorization for an alien having
such status to change employers.
(B) The amount of the fee shall be $1,500 for each such
petition except that the fee shall be half the amount for each
such petition by any employer with not more than 25 full-time
equivalent employees who are employed in the United States
(determined by including any affiliate or subsidiary of such
employer).
(C) Fees collected under this paragraph shall be deposited
in the Treasury in accordance with section 286(s).
(10) An amended H-1B petition shall not be required
where the petitioning employer is involved in a
corporate restructuring, including but not limited to a
merger, acquisition, or consolidation, where a new
corporate entity succeeds to the interests and
obligations of the original petitioning employer and
where the terms and conditions of employment remain the
same but for the identity of the petitioner.
(11)(A) Subject to subparagraph (B), the Secretary of
Homeland Security or the Secretary of State, as appropriate,
shall impose a fee on an employer who has filed an attestation
described in section 212(t)--
(i) in order that an alien may be initially granted
nonimmigrant status described in section
101(a)(15)(H)(i)(b1); or
(ii) in order to satisfy the requirement of the
second sentence of subsection (g)(8)(C) for an alien
having such status to obtain certain extensions of
stay.
(B) The amount of the fee shall be the same as the amount
imposed by the Secretary of Homeland Security under paragraph
(9), except that if such paragraph does not authorize such
Secretary to impose any fee, no fee shall be imposed under this
paragraph.
(C) Fees collected under this paragraph shall be deposited
in the Treasury in accordance with section 286(s).
(12)(A) In addition to any other fees authorized by law,
the Secretary of Homeland Security shall impose a fraud
prevention and detection fee on an employer filing a petition
under paragraph (1)--
(i) initially to grant an alien nonimmigrant status
described in subparagraph (H)(i)(b) or (L) of section
101(a)(15); or
(ii) to obtain authorization for an alien having
such status to change employers.
(B) In addition to any other fees authorized by law, the
Secretary of State shall impose a fraud prevention and
detection fee on an alien filing an application abroad for a
visa authorizing admission to the United States as a
nonimmigrant described in section 101(a)(15)(L), if the alien
is covered under a blanket petition described in paragraph
(2)(A).
(C) The amount of the fee imposed under subparagraph (A) or
(B) shall be $500.
(D) The fee imposed under subparagraph (A) or (B) shall
only apply to principal aliens and not to the spouses or
children who are accompanying or following to join such
principal aliens.
(E) Fees collected under this paragraph shall be deposited
in the Treasury in accordance with section 286(v).
(13)(A) In addition to any other fees authorized by law,
the Secretary of Homeland Security shall impose a fraud
prevention and detection fee on an employer filing a petition
under paragraph (1) for nonimmigrant workers described in
section 101(a)(15)(H)(ii)(b).
(B) The amount of the fee imposed under subparagraph (A)
shall be $150.
(14)(A) If the Secretary of Homeland Security finds, after
notice and an opportunity for a hearing, a substantial failure
to meet any of the conditions of the petition to admit or
otherwise provide status to a nonimmigrant worker under section
101(a)(15)(H)(ii)(b) or a willful misrepresentation of a
material fact in such petition--
(i) the Secretary of Homeland Security may, in
addition to any other remedy authorized by law, impose
such administrative remedies (including civil monetary
penalties in an amount not to exceed $10,000 per
violation) as the Secretary of Homeland Security
determines to be appropriate; and
(ii) the Secretary of Homeland Security may deny
petitions filed with respect to that employer under
section 204 or paragraph (1) of this subsection during
a period of at least 1 year but not more than 5 years
for aliens to be employed by the employer.
(B) The Secretary of Homeland Security may delegate to the
Secretary of Labor, with the agreement of the Secretary of
Labor, any of the authority given to the Secretary of Homeland
Security under subparagraph (A)(i).
(C) In determining the level of penalties to be assessed
under subparagraph (A), the highest penalties shall be reserved
for willful failures to meet any of the conditions of the
petition that involve harm to United States workers.
(D) In this paragraph, the term ``substantial failure''
means the willful failure to comply with the requirements of
this section that constitutes a significant deviation from the
terms and conditions of a petition.
(d)(1) A visa shall not be issued under the provisions of
section 101(a)(15)(K)(i) until the consular officer has
received a petition filed in the United States by the fiancee
or fiance of the applying alien and approved by the Secretary
of Homeland Security. The petition shall be in such form and
contain such information as the Secretary of Homeland Security
shall, by regulation, prescribe. Such information shall include
information on any criminal convictions of the petitioner for
any specified crime described in paragraph (3)(B) and
information on any permanent protection or restraining order
issued against the petitioner related to any specified crime
described in paragraph (3)(B)(i). It shall be approved only
after satisfactory evidence is submitted by the petitioner to
establish that the parties have previously met in person within
2 years before the date of filing the petition, have a bona
fide intention to marry, and are legally able and actually
willing to conclude a valid marriage in the United States
within a period of ninety days after the alien's arrival,
except that the Secretary of Homeland Security in his
discretion may waive the requirement that the parties have
previously met in person. In the event the marriage with the
petitioner does not occur within three months after the
admission of the said alien and minor children, they shall be
required to depart from the United States and upon failure to
do so shall be removed in accordance with sections 240 and 241.
(2)(A) Subject to subparagraphs (B) and (C), the Secretary
of Homeland Security may not approve a petition under paragraph
(1) unless the Secretary has verified that--
(i) the petitioner has not, previous to the pending
petition, petitioned under paragraph (1) with respect
to two or more applying aliens; and
(ii) if the petitioner has had such a petition
previously approved, 2 years have elapsed since the
filing of such previously approved petition.
(B) The Secretary of Homeland Security may, in the
Secretary's discretion, waive the limitations in subparagraph
(A) if justification exists for such a waiver. Except in
extraordinary circumstances and subject to subparagraph (C),
such a waiver shall not be granted if the petitioner has a
record of violent criminal offenses against a person or
persons.
(C)(i) The Secretary of Homeland Security is not limited by
the criminal court record and shall grant a waiver of the
condition described in the second sentence of subparagraph (B)
in the case of a petitioner described in clause (ii).
(ii) A petitioner described in this clause is a petitioner
who has been battered or subjected to extreme cruelty and who
is or was not the primary perpetrator of violence in the
relationship upon a determination that--
(I) the petitioner was acting in self-defense;
(II) the petitioner was found to have violated a
protection order intended to protect the petitioner; or
(III) the petitioner committed, was arrested for,
was convicted of, or pled guilty to committing a crime
that did not result in serious bodily injury and where
there was a connection between the crime and the
petitioner's having been battered or subjected to
extreme cruelty.
(iii) In acting on applications under this subparagraph,
the Secretary of Homeland Security shall consider any credible
evidence relevant to the application. The determination of what
evidence is credible and the weight to be given that evidence
shall be within the sole discretion of the Secretary.
(3) In this subsection:
(A) The terms ``domestic violence'', ``sexual
assault'', ``child abuse and neglect'', ``dating
violence'', ``elder abuse'', and ``stalking'' have the
meaning given such terms in section 3 of the Violence
Against Women and Department of Justice Reauthorization
Act of 2005.
(B) The term ``specified crime'' means the
following:
(i) Domestic violence, sexual assault,
child abuse and neglect, dating violence, elder
abuse, stalking, or an attempt to commit any
such crime.
(ii) Homicide, murder, manslaughter, rape,
abusive sexual contact, sexual exploitation,
incest, torture, trafficking, peonage, holding
hostage, involuntary servitude, slave trade,
kidnapping, abduction, unlawful criminal
restraint, false imprisonment, or an attempt to
commit any of the crimes described in this
clause.
(iii) At least three convictions for crimes
relating to a controlled substance or alcohol
not arising from a single act.
(e)(1) Notwithstanding any other provision of this Act, an
alien who is a citizen of Canada and seeks to enter the United
States under and pursuant to the provisions of Annex 1502.1
(United States of America), Part C--Professionals, of the
United States-Canada Free-Trade Agreement to engage in business
activities at a professional level as provided for therein may
be admitted for such purpose under regulations of the Attorney
General promulgated after consultation with the Secretaries of
State and Labor.
(2) An alien who is a citizen of Canada or Mexico, and the
spouse and children of any such alien if accompanying or
following to join such alien, who seeks to enter the United
States under and pursuant to the provisions of Section D of
Annex 1603 of the North American Free Trade Agreement (in this
subsection referred to as ``NAFTA'') to engage in business
activities at a professional level as provided for in such
Annex, may be admitted for such purpose under regulations of
the Attorney General promulgated after consultation with the
Secretaries of State and Labor. For purposes of this Act,
including the issuance of entry documents and the application
of subsection (b), such alien shall be treated as if seeking
classification, or classifiable, as a nonimmigrant under
section 101(a)(15). The admission of an alien who is a citizen
of Mexico shall be subject to paragraphs (3), (4), and (5). For
purposes of this paragraph and paragraphs (3), (4), and (5),
the term ``citizen of Mexico'' means ``citizen'' as defined in
Annex 1608 of NAFTA.
(3) The Attorney General shall establish an annual
numerical limit on admissions under paragraph (2) of aliens who
are citizens of Mexico, as set forth in Appendix 1603.D.4 of
Annex 1603 of the NAFTA. Subject to paragraph (4), the annual
numerical limit--
(A) beginning with the second year that NAFTA is in
force, may be increased in accordance with the
provisions of paragraph 5(a) of Section D of such
Annex, and
(B) shall cease to apply as provided for in
paragraph 3 of such Appendix.
(4) The annual numerical limit referred to in paragraph (3)
may be increased or shall cease to apply (other than by
operation of paragraph 3 of such Appendix) only if--
(A) the President has obtained advice regarding the
proposed action from the appropriate advisory
committees established under section 135 of the Trade
Act of 1974 (19 U.S.C. 2155);
(B) the President has submitted a report to the
Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of
Representatives that sets forth--
(i) the action proposed to be taken and the
reasons therefor, and
(ii) the advice obtained under subparagraph
(A);
(C) a period of at least 60 calendar days that
begins on the first day on which the President has met
the requirements of subparagraphs (A) and (B) with
respect to such action has expired; and
(D) the President has consulted with such
committees regarding the proposed action during the
period referred to in subparagraph (C).
(5) During the period that the provisions of Appendix
1603.D.4 of Annex 1603 of the NAFTA apply, the entry of an
alien who is a citizen of Mexico under and pursuant to the
provisions of Section D of Annex 1603 of NAFTA shall be subject
to the attestation requirement of section 212(m), in the case
of a registered nurse, or the application requirement of
section 212(n), in the case of all other professions set out in
Appendix 1603.D.1 of Annex 1603 of NAFTA, and the petition
requirement of subsection (c), to the extent and in the manner
prescribed in regulations promulgated by the Secretary of
Labor, with respect to sections 212(m) and 212(n), and the
Attorney General, with respect to subsection (c).
(6) In the case of an alien spouse admitted under section
101(a)(15)(E), who is accompanying or following to join a
principal alien admitted under such section, the Attorney
General shall authorize the alien spouse to engage in
employment in the United States and provide the spouse with an
``employment authorized'' endorsement or other appropriate work
permit.
(f)(1) Except as provided in paragraph (3), no alien shall
be entitled to nonimmigrant status described in section
101(a)(15)(D) if the alien intends to land for the purpose of
performing service on board a vessel of the United States (as
defined in section 2101(46) of title 46, United States Code) or
on an aircraft of an air carrier (as defined in section
40102(a)(2) of title 49, United States Code) during a labor
dispute where there is a strike or lockout in the bargaining
unit of the employer in which the alien intends to perform such
service.
(2) An alien described in paragraph (1)--
(A) may not be paroled into the United States
pursuant to section 212(d)(5) unless the Attorney
General determines that the parole of such alien is
necessary to protect the national security of the
United States; and
(B) shall be considered not to be a bona fide
crewman for purposes of section 252(b).
(3) Paragraph (1) shall not apply to an alien if the air
carrier or owner or operator of such vessel that employs the
alien provides documentation that satisfies the Attorney
General that the alien--
(A) has been an employee of such employer for a
period of not less than 1 year preceding the date that
a strike or lawful lockout commenced;
(B) has served as a qualified crewman for such
employer at least once in each of 3 months during the
12-month period preceding such date; and
(C) shall continue to provide the same services
that such alien provided as such a crewman.
(g)(1) The total number of aliens who may be issued visas
or otherwise provided nonimmigrant status during any fiscal
year (beginning with fiscal year 1992)--
(A) under section 101(a)(15)(H)(i)(b), may not
exceed--
(i) 65,000 in each fiscal year before
fiscal year 1999;
(ii) 115,000 in fiscal year 1999;
(iii) 115,000 in fiscal year 2000;
(iv) 195,000 in fiscal year 2001;
(v) 195,000 in fiscal year 2002;
(vi) 195,000 in fiscal year 2003; and
(vii) 65,000 in each succeeding fiscal
year; or
(B) under section 101(a)(15)(H)(ii)(b) may not
exceed 66,000.
(2) The numerical limitations of paragraph (1) shall only
apply to principal aliens and not to the spouses or children of
such aliens.
(3) Aliens who are subject to the numerical limitations of
paragraph (1) shall be issued visas (or otherwise provided
nonimmigrant status) in the order in which petitions are filed
for such visas or status. If an alien who was issued a visa or
otherwise provided nonimmigrant status and counted against the
numerical limitations of paragraph (1) is found to have been
issued such visa or otherwise provided such status by fraud or
willfully misrepresenting a material fact and such visa or
nonimmigrant status is revoked, then one number shall be
restored to the total number of aliens who may be issued visas
or otherwise provided such status under the numerical
limitations of paragraph (1) in the fiscal year in which the
petition is revoked, regardless of the fiscal year in which the
petition was approved.
(4) In the case of a nonimmigrant described in section
101(a)(15)(H)(i)(b), the period of authorized admission as such
a nonimmigrant may not exceed 6 years.
(5) The numerical limitations contained in paragraph (1)(A)
shall not apply to any nonimmigrant alien issued a visa or
otherwise provided status under section 101(a)(15)(H)(i)(b)
who--
(A) is employed (or has received an offer of
employment) at an institution of higher education (as
defined in section 101(a) of the Higher Education Act
of 1965 (20 U.S.C. 1001(a))), or a related or
affiliated nonprofit entity;
(B) is employed (or has received an offer of
employment) at a nonprofit research organization or a
governmental research organization; or
(C) has earned a master's or higher degree from a
United States institution of higher education (as
defined in section 101(a) of the Higher Education Act
of 1965 (20 U.S.C. 1001(a)), until the number of aliens
who are exempted from such numerical limitation during
such year exceeds 20,000.
(6) Any alien who ceases to be employed by an employer
described in paragraph (5)(A) shall, if employed as a
nonimmigrant alien described in section 101(a)(15)(H)(i)(b),
who has not previously been counted toward the numerical
limitations contained in paragraph (1)(A), be counted toward
those limitations the first time the alien is employed by an
employer other than one described in paragraph (5).
(7) Any alien who has already been counted, within the 6
years prior to the approval of a petition described in
subsection (c), toward the numerical limitations of paragraph
(1)(A) shall not again be counted toward those limitations
unless the alien would be eligible for a full 6 years of
authorized admission at the time the petition is filed. Where
multiple petitions are approved for 1 alien, that alien shall
be counted only once.
(8)(A) The agreements referred to in section
101(a)(15)(H)(i)(b1) are--
(i) the United States-Chile Free Trade Agreement;
and
(ii) the United States-Singapore Free Trade
Agreement.
(B)(i) The Secretary of Homeland Security shall establish
annual numerical limitations on approvals of initial
applications by aliens for admission under section
101(a)(15)(H)(i)(b1).
(ii) The annual numerical limitations described in clause
(i) shall not exceed--
(I) 1,400 for nationals of Chile (as defined in
article 14.9 of the United States-Chile Free Trade
Agreement) for any fiscal year; and
(II) 5,400 for nationals of Singapore (as defined
in Annex 1A of the United States-Singapore Free Trade
Agreement) for any fiscal year.
(iii) The annual numerical limitations described in clause
(i) shall only apply to principal aliens and not to the spouses
or children of such aliens.
(iv) The annual numerical limitation described in paragraph
(1)(A) is reduced by the amount of the annual numerical
limitations established under clause (i). However, if a
numerical limitation established under clause (i) has not been
exhausted at the end of a given fiscal year, the Secretary of
Homeland Security shall adjust upwards the numerical limitation
in paragraph (1)(A) for that fiscal year by the amount
remaining in the numerical limitation under clause (i). Visas
under section 101(a)(15)(H)(i)(b) may be issued pursuant to
such adjustment within the first 45 days of the next fiscal
year to aliens who had applied for such visas during the fiscal
year for which the adjustment was made.
(C) The period of authorized admission as a nonimmigrant
under section 101(a)(15)(H)(i)(b1) shall be 1 year, and may be
extended, but only in 1-year increments. After every second
extension, the next following extension shall not be granted
unless the Secretary of Labor had determined and certified to
the Secretary of Homeland Security and the Secretary of State
that the intending employer has filed with the Secretary of
Labor an attestation under section 212(t)(1) for the purpose of
permitting the nonimmigrant to obtain such extension.
(D) The numerical limitation described in paragraph (1)(A)
for a fiscal year shall be reduced by one for each alien
granted an extension under subparagraph (C) during such year
who has obtained 5 or more consecutive prior extensions.
(9)(A) Subject to subparagraphs (B) and (C), an alien who
has already been counted toward the numerical limitation of
paragraph (1)(B) during fiscal year 2013, 2014, or 2015 shall
not again be counted toward such limitation during fiscal year
2016. Such an alien shall be considered a returning worker.
(B) A petition to admit or otherwise provide status under
section 101(a)(15)(H)(ii)(b) shall include, with respect to a
returning worker--
(i) all information and evidence that the Secretary
of Homeland Security determines is required to support
a petition for status under section
101(a)(15)(H)(ii)(b);
(ii) the full name of the alien; and
(iii) a certification to the Department of Homeland
Security that the alien is a returning worker.
(C) An H-2B visa or grant of nonimmigrant status for a
returning worker shall be approved only if the alien is
confirmed to be a returning worker by--
(i) the Department of State; or
(ii) if the alien is visa exempt or seeking to
change to status under section 101 (a)(15)(H)(ii)(b),
the Department of Homeland Security.
(10) The numerical limitations of paragraph (1)(B) shall be
allocated for a fiscal year so that the total number of aliens
subject to such numerical limits who enter the United States
pursuant to a visa or are accorded nonimmigrant status under
section 101(a)(15)(H)(ii)(b) during the first 6 months of such
fiscal year is not more than 33,000.
(11)(A) The Secretary of State may not approve a number of
initial applications submitted for aliens described in section
101(a)(15)(E)(iii) that is more than the applicable numerical
limitation set out in this paragraph.
(B) The applicable numerical limitation referred to in
subparagraph (A) is 10,500 for each fiscal year.
(C) The applicable numerical limitation referred to in
subparagraph (A) shall only apply to principal aliens and not
to the spouses or children of such aliens.
(h) The fact that an alien is the beneficiary of an
application for a preference status filed under section 204 or
has otherwise sought permanent residence in the United States
shall not constitute evidence of an intention to abandon a
foreign residence for purposes of obtaining a visa as a
nonimmigrant described in subparagraph (H)(i)(b) or (c), (L),
or (V) of section 101(a)(15) or otherwise obtaining or
maintaining the status of a nonimmigrant described in such
subparagraph, if the alien had obtained a change of status
under section 248 to a classification as such a nonimmigrant
before the alien's most recent departure from the United
States.
(i)(1) Except as provided in paragraph (3), for purposes of
section 101(a)(15)(H)(i)(b), section 101(a)(15)(E)(iii), and
paragraph (2), the term ``specialty occupation'' means an
occupation that requires--
(A) theoretical and practical application of a body
of highly specialized knowledge, and
(B) attainment of a bachelor's or higher degree in
the specific specialty (or its equivalent) as a minimum
for entry into the occupation in the United States.
(2) For purposes of section 101(a)(15)(H)(i)(b), the
requirements of this paragraph, with respect to a specialty
occupation, are--
(A) full state licensure to practice in the
occupation, if such licensure is required to practice
in the occupation,
(B) completion of the degree described in paragraph
(1)(B) for the occupation, or
(C)(i) experience in the specialty equivalent to
the completion of such degree, and (ii) recognition of
expertise in the specialty through progressively
responsible positions relating to the specialty.
(3) For purposes of section 101(a)(15)(H)(i)(b1), the term
``specialty occupation'' means an occupation that requires--
(A) theoretical and practical application of a body
of specialized knowledge; and
(B) attainment of a bachelor's or higher degree in
the specific specialty (or its equivalent) as a minimum
for entry into the occupation in the United States.
(j)(1) Notwithstanding any other provision of this Act, an
alien who is a citizen of Canada or Mexico who seeks to enter
the United States under and pursuant to the provisions of
Section B, Section C, or Section D of Annex 1603 of the North
American Free Trade Agreement, shall not be classified as a
nonimmigrant under such provisions if there is in progress a
strike or lockout in the course of a labor dispute in the
occupational classification at the place or intended place of
employment, unless such alien establishes, pursuant to
regulations promulgated by the Attorney General, that the
alien's entry will not affect adversely the settlement of the
strike or lockout or the employment of any person who is
involved in the strike or lockout. Notice of a determination
under this paragraph shall be given as may be required by
paragraph 3 of article 1603 of such Agreement. For purposes of
this paragraph, the term ``citizen of Mexico'' means
``citizen'' as defined in Annex 1608 of such Agreement.
(2) Notwithstanding any other provision of this Act except
section 212(t)(1), and subject to regulations promulgated by
the Secretary of Homeland Security, an alien who seeks to enter
the United States under and pursuant to the provisions of an
agreement listed in subsection (g)(8)(A), and the spouse and
children of such an alien if accompanying or following to join
the alien, may be denied admission as a nonimmigrant under
subparagraph (E), (L), or (H)(i)(b1) of section 101(a)(15) if
there is in progress a labor dispute in the occupational
classification at the place or intended place of employment,
unless such alien establishes, pursuant to regulations
promulgated by the Secretary of Homeland Security after
consultation with the Secretary of Labor, that the alien's
entry will not affect adversely the settlement of the labor
dispute or the employment of any person who is involved in the
labor dispute. Notice of a determination under this paragraph
shall be given as may be required by such agreement.
(k)(1) The number of aliens who may be provided a visa as
nonimmigrants under section 101(a)(15)(S)(i) in any fiscal year
may not exceed 200. The number of aliens who may be provided a
visa as nonimmigrants under section 101(a)(15)(S)(ii) in any
fiscal year may not exceed 50.
(2) The period of admission of an alien as such a
nonimmigrant may not exceed 3 years. Such period may not be
extended by the Attorney General.
(3) As a condition for the admission, and continued stay in
lawful status, of such a nonimmigrant, the nonimmigrant--
(A) shall report not less often than quarterly to
the Attorney General such information concerning the
alien's whereabouts and activities as the Attorney
General may require;
(B) may not be convicted of any criminal offense
punishable by a term of imprisonment of 1 year or more
after the date of such admission;
(C) must have executed a form that waives the
nonimmigrant's right to contest, other than on the
basis of an application for withholding of removal, any
action for removal of the alien instituted before the
alien obtains lawful permanent resident status; and
(D) shall abide by any other condition, limitation,
or restriction imposed by the Attorney General.
(4) The Attorney General shall submit a report annually to
the Committee on the Judiciary of the House of Representatives
and the Committee on the Judiciary of the Senate concerning--
(A) the number of such nonimmigrants admitted;
(B) the number of successful criminal prosecutions
or investigations resulting from cooperation of such
aliens;
(C) the number of terrorist acts prevented or
frustrated resulting from cooperation of such aliens;
(D) the number of such nonimmigrants whose
admission or cooperation has not resulted in successful
criminal prosecution or investigation or the prevention
or frustration of a terrorist act; and
(E) the number of such nonimmigrants who have
failed to report quarterly (as required under paragraph
(3)) or who have been convicted of crimes in the United
States after the date of their admission as such a
nonimmigrant.
(l)(1) In the case of a request by an interested State
agency, or by an interested Federal agency, for a waiver of the
2-year foreign residence requirement under section 212(e) on
behalf of an alien described in clause (iii) of such section,
the Attorney General shall not grant such waiver unless--
(A) in the case of an alien who is otherwise
contractually obligated to return to a foreign country,
the government of such country furnishes the Director
of the United States Information Agency with a
statement in writing that it has no objection to such
waiver;
(B) in the case of a request by an interested State
agency, the grant of such waiver would not cause the
number of waivers allotted for that State for that
fiscal year to exceed 30;
(C) in the case of a request by an interested
Federal agency or by an interested State agency--
(i) the alien demonstrates a bona fide
offer of full-time employment at a health
facility or health care organization, which
employment has been determined by the Attorney
General to be in the public interest; and
(ii) the alien agrees to begin employment
with the health facility or health care
organization within 90 days of receiving such
waiver, and agrees to continue to work for a
total of not less than 3 years (unless the
Attorney General determines that extenuating
circumstances exist, such as closure of the
facility or hardship to the alien, which would
justify a lesser period of employment at such
health facility or health care organization, in
which case the alien must demonstrate another
bona fide offer of employment at a health
facility or health care organization for the
remainder of such 3-year period); and
(D) in the case of a request by an interested
Federal agency (other than a request by an interested
Federal agency to employ the alien full-time in medical
research or training) or by an interested State agency,
the alien agrees to practice primary care or specialty
medicine in accordance with paragraph (2) for a total
of not less than 3 years only in the geographic area or
areas which are designated by the Secretary of Health
and Human Services as having a shortage of health care
professionals, except that--
(i) in the case of a request by the
Department of Veterans Affairs, the alien shall
not be required to practice medicine in a
geographic area designated by the Secretary;
(ii) in the case of a request by an
interested State agency, the head of such State
agency determines that the alien is to practice
medicine under such agreement in a facility
that serves patients who reside in one or more
geographic areas so designated by the Secretary
of Health and Human Services (without regard to
whether such facility is located within such a
designated geographic area), and the grant of
such waiver would not cause the number of the
waivers granted on behalf of aliens for such
State for a fiscal year (within the limitation
in subparagraph (B)) in accordance with the
conditions of this clause to exceed 10; and
(iii) in the case of a request by an
interested Federal agency or by an interested
State agency for a waiver for an alien who
agrees to practice specialty medicine in a
facility located in a geographic area so
designated by the Secretary of Health and Human
Services, the request shall demonstrate, based
on criteria established by such agency, that
there is a shortage of health care
professionals able to provide services in the
appropriate medical specialty to the patients
who will be served by the alien.
(2)(A) Notwithstanding section 248(a)(2), the
Attorney General may change the status of an alien who
qualifies under this subsection and section 212(e) to
that of an alien described in section
101(a)(15)(H)(i)(b). The numerical limitations
contained in subsection (g)(1)(A) shall not apply to
any alien whose status is changed under the preceding
sentence, if the alien obtained a waiver of the 2-year
foreign residence requirement upon a request by an
interested Federal agency or an interested State
agency.
(B) No person who has obtained a change of status
under subparagraph (A) and who has failed to fulfill
the terms of the contract with the health facility or
health care organization named in the waiver
application shall be eligible to apply for an immigrant
visa, for permanent residence, or for any other change
of nonimmigrant status, until it is established that
such person has resided and been physically present in
the country of his nationality or his last residence
for an aggregate of at least 2 years following
departure from the United States.
(3) Notwithstanding any other provision of this
subsection, the 2-year foreign residence requirement
under section 212(e) shall apply with respect to an
alien described in clause (iii) of such section, who
has not otherwise been accorded status under section
101(a)(27)(H), if--
(A) at any time the alien ceases to comply
with any agreement entered into under
subparagraph (C) or (D) of paragraph (1); or
(B) the alien's employment ceases to
benefit the public interest at any time during
the 3-year period described in paragraph
(1)(C).
(m)(1) An alien may not be accorded status as a
nonimmigrant under clause (i) or (iii) of section 101(a)(15)(F)
in order to pursue a course of study--
(A) at a public elementary school or in a publicly
funded adult education program; or
(B) at a public secondary school unless--
(i) the aggregate period of such status at
such a school does not exceed 12 months with
respect to any alien, and (ii) the alien
demonstrates that the alien has reimbursed the
local educational agency that administers the
school for the full, unsubsidized per capita
cost of providing education at such school for
the period of the alien's attendance.
(2) An alien who obtains the status of a nonimmigrant under
clause (i) or (iii) of section 101(a)(15)(F) in order to pursue
a course of study at a private elementary or secondary school
or in a language training program that is not publicly funded
shall be considered to have violated such status, and the
alien's visa under section 101(a)(15)(F) shall be void, if the
alien terminates or abandons such course of study at such a
school and undertakes a course of study at a public elementary
school, in a publicly funded adult education program, in a
publicly funded adult education language training program, or
at a public secondary school (unless the requirements of
paragraph (1)(B) are met).
(n)(1) A nonimmigrant alien described in paragraph (2) who
was previously issued a visa or otherwise provided nonimmigrant
status under section 101(a)(15)(H)(i)(b) is authorized to
accept new employment upon the filing by the prospective
employer of a new petition on behalf of such nonimmigrant as
provided under subsection (a). Employment authorization shall
continue for such alien until the new petition is adjudicated.
If the new petition is denied, such authorization shall cease.
(2) A nonimmigrant alien described in this paragraph is a
nonimmigrant alien--
(A) who has been lawfully admitted into the United
States;
(B) on whose behalf an employer has filed a
nonfrivolous petition for new employment before the
date of expiration of the period of stay authorized by
the Attorney General; and
(C) who, subsequent to such lawful admission, has
not been employed without authorization in the United
States before the filing of such petition.
(o)(1) No alien shall be eligible for admission to the
United States under section 101(a)(15)(T) if there is
substantial reason to believe that the alien has committed an
act of a severe form of trafficking in persons (as defined in
section 103 of the Trafficking Victims Protection Act of 2000).
(2) The total number of aliens who may be issued visas or
otherwise provided nonimmigrant status during any fiscal year
under section 101(a)(15)(T) may not exceed 5,000.
(3) The numerical limitation of paragraph (2) shall only
apply to principal aliens and not to the spouses, sons,
daughters, siblings, or parents of such aliens.
(4) An unmarried alien who seeks to accompany, or follow to
join, a parent granted status under section 101(a)(15)(T)(i),
and who was under 21 years of age on the date on which such
parent applied for such status, shall continue to be classified
as a child for purposes of section 101(a)(15)(T)(ii), if the
alien attains 21 years of age after such parent's application
was filed but while it was pending.
(5) An alien described in clause (i) of section
101(a)(15)(T) shall continue to be treated as an alien
described in clause (ii)(I) of such section if the alien
attains 21 years of age after the alien's application for
status under such clause (i) is filed but while it is pending.
(6) In making a determination under section
101(a)(15)(T)(i)(III)(aa) with respect to an alien, statements
from State and local law enforcement officials that the alien
has complied with any reasonable request for assistance in the
investigation or prosecution of crimes such as kidnapping,
rape, slavery, or other forced labor offenses, where severe
forms of trafficking in persons (as defined in section 103 of
the Trafficking Victims Protection Act of 2000) appear to have
been involved, shall be considered.
(7)(A) Except as provided in subparagraph (B), an alien who
is issued a visa or otherwise provided nonimmigrant status
under section 101(a)(15)(T) may be granted such status for a
period of not more than 4 years.
(B) An alien who is issued a visa or otherwise provided
nonimmigrant status under section 101(a)(15)(T) may extend the
period of such status beyond the period described in
subparagraph (A) if--
(i) a Federal, State, or local law enforcement
official, prosecutor, judge, or other authority
investigating or prosecuting activity relating to human
trafficking or certifies that the presence of the alien
in the United States is necessary to assist in the
investigation or prosecution of such activity;
(ii) the alien is eligible for relief under section
245(l) and is unable to obtain such relief because
regulations have not been issued to implement such
section; or
(iii) the Secretary of Homeland Security determines
that an extension of the period of such nonimmigrant
status is warranted due to exceptional circumstances.
(C) Nonimmigrant status under section 101(a)(15)(T) shall
be extended during the pendency of an application for
adjustment of status under section 245(l).
(p) Requirements Applicable to Section 101(a)(15)(U)
Visas.--
(1) Petitioning procedures for section
101(a)(15)(u) visas.--The petition filed by an alien
under section 101(a)(15)(U)(i) shall contain a
certification from a Federal, State, or local law
enforcement official, prosecutor, judge, or other
Federal, State, or local authority investigating
criminal activity described in section
101(a)(15)(U)(iii). This certification may also be
provided by an official of the Service whose ability to
provide such certification is not limited to
information concerning immigration violations. This
certification shall state that the alien ``has been
helpful, is being helpful, or is likely to be helpful''
in the investigation or prosecution of criminal
activity described in section 101(a)(15)(U)(iii).
(2) Numerical limitations.--
(A) The number of aliens who may be issued
visas or otherwise provided status as
nonimmigrants under section 101(a)(15)(U) in
any fiscal year shall not exceed 10,000.
(B) The numerical limitations in
subparagraph (A) shall only apply to principal
aliens described in section 101(a)(15)(U)(i),
and not to spouses, children, or, in the case
of alien children, the alien parents of such
children.
(3) Duties of the attorney general with respect to
``u'' visa nonimmigrants.--With respect to nonimmigrant
aliens described in subsection (a)(15)(U)--
(A) the Attorney General and other
government officials, where appropriate, shall
provide those aliens with referrals to
nongovernmental organizations to advise the
aliens regarding their options while in the
United States and the resources available to
them; and
(B) the Attorney General shall, during the
period those aliens are in lawful temporary
resident status under that subsection, provide
the aliens with employment authorization.
(4) Credible evidence considered.--In acting on any
petition filed under this subsection, the consular
officer or the Attorney General, as appropriate, shall
consider any credible evidence relevant to the
petition.
(5) Nonexclusive relief.--Nothing in this
subsection limits the ability of aliens who qualify for
status under section 101(a)(15)(U) to seek any other
immigration benefit or status for which the alien may
be eligible.
(6) Duration of status.--The authorized period of
status of an alien as a nonimmigrant under section
101(a)(15)(U) shall be for a period of not more than 4
years, but shall be extended upon certification from a
Federal, State, or local law enforcement official,
prosecutor, judge, or other Federal, State, or local
authority investigating or prosecuting criminal
activity described in section 101(a)(15)(U)(iii) that
the alien's presence in the United States is required
to assist in the investigation or prosecution of such
criminal activity. The Secretary of Homeland Security
may extend, beyond the 4-year period authorized under
this section, the authorized period of status of an
alien as a nonimmigrant under section 101(a)(15)(U) if
the Secretary determines that an extension of such
period is warranted due to exceptional circumstances.
Such alien's nonimmigrant status shall be extended
beyond the 4-year period authorized under this section
if the alien is eligible for relief under section
245(m) and is unable to obtain such relief because
regulations have not been issued to implement such
section and shall be extended during the pendency of an
application for adjustment of status under section
245(m). The Secretary may grant work authorization to
any alien who has a pending, bona fide application for
nonimmigrant status under section 101(a)(15)(U).
(7) Age determinations.--
(A) Children.--An unmarried alien who seeks
to accompany, or follow to join, a parent
granted status under section 101(a)(15)(U)(i),
and who was under 21 years of age on the date
on which such parent petitioned for such
status, shall continue to be classified as a
child for purposes of section
101(a)(15)(U)(ii), if the alien attains 21
years of age after such parent's petition was
filed but while it was pending.
(B) Principal aliens.--An alien described
in clause (i) of section 101(a)(15)(U) shall
continue to be treated as an alien described in
clause (ii)(I) of such section if the alien
attains 21 years of age after the alien's
application for status under such clause (i) is
filed but while it is pending.
(q)(1) In the case of a nonimmigrant described in section
101(a)(15)(V)--
(A) the Attorney General shall authorize the alien
to engage in employment in the United States during the
period of authorized admission and shall provide the
alien with an ``employment authorized'' endorsement or
other appropriate document signifying authorization of
employment; and
(B) the period of authorized admission as such a
nonimmigrant shall terminate 30 days after the date on
which any of the following is denied:
(i) The petition filed under section 204 to
accord the alien a status under section
203(a)(2)(A) (or, in the case of a child
granted nonimmigrant status based on
eligibility to receive a visa under section
203(d), the petition filed to accord the
child's parent a status under section
203(a)(2)(A)).
(ii) The alien's application for an
immigrant visa pursuant to the approval of such
petition.
(iii) The alien's application for
adjustment of status under section 245 pursuant
to the approval of such petition.
(2) In determining whether an alien is eligible to be
admitted to the United States as a nonimmigrant under section
101(a)(15)(V), the grounds for inadmissibility specified in
section 212(a)(9)(B) shall not apply.
(3) The status of an alien physically present in the United
States may be adjusted by the Attorney General, in the
discretion of the Attorney General and under such regulations
as the Attorney General may prescribe, to that of a
nonimmigrant under section 101(a)(15)(V), if the alien--
(A) applies for such adjustment;
(B) satisfies the requirements of such section; and
(C) is eligible to be admitted to the United
States, except in determining such admissibility, the
grounds for inadmissibility specified in paragraphs
(6)(A), (7), and (9)(B) of section 212(a) shall not
apply.
(r)(1) A visa shall not be issued under the provisions of
section 101(a)(15)(K)(ii) until the consular officer has
received a petition filed in the United States by the spouse of
the applying alien and approved by the Attorney General. The
petition shall be in such form and contain such information as
the Attorney General shall, by regulation, prescribe. Such
information shall include information on any criminal
convictions of the petitioner for any specified crime described
in paragraph (5)(B) and information on any permanent protection
or restraining order issued against the petitioner related to
any specified crime described in subsection (5)(B)(i).
(2) In the case of an alien seeking admission under section
101(a)(15)(K)(ii) who concluded a marriage with a citizen of
the United States outside the United States, the alien shall be
considered inadmissible under section 212(a)(7)(B) if the alien
is not at the time of application for admission in possession
of a valid nonimmigrant visa issued by a consular officer in
the foreign state in which the marriage was concluded.
(3) In the case of a nonimmigrant described in section
101(a)(15)(K)(ii), and any child of such a nonimmigrant who was
admitted as accompanying, or following to join, such a
nonimmigrant, the period of authorized admission shall
terminate 30 days after the date on which any of the following
is denied:
(A) The petition filed under section 204 to accord
the principal alien status under section
201(b)(2)(A)(i).
(B) The principal alien's application for an
immigrant visa pursuant to the approval of such
petition.
(C) The principal alien's application for
adjustment of status under section 245 pursuant to the
approval of such petition.
(4)(A) The Secretary of Homeland Security shall create a
database for the purpose of tracking multiple visa petitions
filed for fiance(e)s and spouses under clauses (i) and (ii) of
section 101(a)(15)(K). Upon approval of a second visa petition
under section 101(a)(15)(K) for a fiance(e) or spouse filed by
the same United States citizen petitioner, the petitioner shall
be notified by the Secretary that information concerning the
petitioner has been entered into the multiple visa petition
tracking database. All subsequent fiance(e) or spouse
nonimmigrant visa petitions filed by that petitioner under such
section shall be entered in the database.
(B)(i) Once a petitioner has had two fiance(e) or spousal
petitions approved under clause (i) or (ii) of section
101(a)(15)(K), if a subsequent petition is filed under such
section less than 10 years after the date the first visa
petition was filed under such section, the Secretary of
Homeland Security shall notify both the petitioner and
beneficiary of any such subsequent petition about the number of
previously approved fiance(e) or spousal petitions listed in
the database.
(ii) To notify the beneficiary as required by clause (i),
the Secretary of Homeland Security shall provide such notice to
the Secretary of State for inclusion in the mailing to the
beneficiary described in section 833(a)(5)(A)(i) of the
International Marriage Broker Regulation Act of 2005 (8 U.S.C.
1375a(a)(5)(A)(i)).
(5) In this subsection:
(A) The terms ``domestic violence'', ``sexual
assault'', ``child abuse and neglect'', ``dating
violence'', ``elder abuse'', and ``stalking'' have the
meaning given such terms in section 3 of the Violence
Against Women and Department of Justice Reauthorization
Act of 2005.
(B) The term ``specified crime'' means the
following:
(i) Domestic violence, sexual assault,
child abuse and neglect, dating violence, elder
abuse, stalking, or an attempt to commit any
such crime.
(ii) Homicide, murder, manslaughter, rape,
abusive sexual contact, sexual exploitation,
incest, torture, trafficking, peonage, holding
hostage, involuntary servitude, slave trade,
kidnapping, abduction, unlawful criminal
restraint, false imprisonment, or an attempt to
commit any of the crimes described in this
clause.
(iii) At least three convictions for crimes
relating to a controlled substance or alcohol
not arising from a single act.
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