§ 1186b. Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

• (a)
  • (1) An alien investor, alien spouse, and alien child shall be considered, at the time of obtaining status as an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.
  • (2)
    • (A) At the time an alien investor, alien spouse, or alien child obtains permanent resident status on a conditional basis under paragraph (1), the Secretary of Homeland Security shall provide for notice to such an investor, spouse, or child respecting the provisions of this section and the requirements of subsection (c)(1) to have the conditional basis of such status removed.
    • (B) In addition, the Secretary of Homeland Security shall attempt to provide notice to such an investor, spouse, or child, at or about the beginning of the 90-day period described in subsection (d)(2)(A), of the requirements of subsection (c)(1).
    • (C) The failure of the Secretary of Homeland Security to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such an investor, spouse, or child.
• (b)
  • (1) In the case of an alien investor with permanent resident status on a conditional basis under subsection (a), if the Secretary of Homeland Security determines, before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence, that—
    • (A) the investment in the commercial enterprise was intended solely as a means of evading the immigration laws of the United States,
    • (B) the alien did not invest the requisite capital; or
    • (C) the alien was otherwise not conforming to the requirements of section 1153(b)(5) of this title ,
  • (2) Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.
• (c)
  • (1) Except as provided in paragraph (3)(D), in order for the conditional basis established under subsection (a) for an alien investor, alien spouse, or alien child to be removed—
    • (A) the alien investor shall submit to the Secretary of Homeland Security, during the period described in subsection (d)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1);
    • (B) in accordance with subsection (d)(3), the alien investor shall appear for a personal interview before an officer or employee of the Department of Homeland Security respecting the facts and information described in subsection (d)(1); and 1 1 See Enactment of Subsection (c)(1)(C) note below.
  • (2)
    • (A) In the case of an alien with permanent resident status on a conditional basis under subsection (a), if—
      • (i) no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or
      • (ii) unless there is good cause shown, the alien investor fails to appear at the interview described in paragraph (1)(B) (if required under subsection (d)(3)),
    • (B) In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B).
  • (3)
    • (A) If—
      • (i) a petition is filed in accordance with the provisions of paragraph (1)(A), and
      • (ii) the alien investor appears at any interview described in paragraph (1)(B),
    • (B)
      • (i) Except as provided in clause (ii), if the Secretary determines that the facts and information contained in a petition submitted under paragraph (1)(A) are true, including demonstrating that the alien complied with subsection (d)(1)(B)(i), the Secretary shall—
        • (I) notify the alien involved of such determination; and
        • (II) remove the conditional basis of the alien’s status effective as of the second anniversary of the alien’s lawful admission for permanent residence.
      • (ii) If the petition demonstrates that the facts and information are true and that the alien is in compliance with subsection (d)(1)(B)(ii)—
        • (I) the Secretary, in the Secretary’s discretion, may provide a 1-year extension of the alien’s conditional status; and
        • (II)
    • (C) If the Secretary of Homeland Security determines that such facts and information are not true, the Secretary of Homeland Security shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien investor, alien spouse, or alien child as of the date of the determination.
    • (D) Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) and alleged in the petition are not true with respect to the qualifying commercial enterprise.
• (d)
  • (1) Each petition under subsection (c)(1)(A) shall contain facts and information demonstrating that the alien—
    • (A) invested the requisite capital;
    • (B)
      • (i) created the employment required under section 1153(b)(5)(A)(ii) of this title ; or
      • (ii) is actively in the process of creating the employment required under section 1153(b)(5)(A)(ii) of this title and will create such employment before the third anniversary of the alien’s lawful admission for permanent residence, provided that such alien’s capital will remain invested during such time; and
    • (C) is otherwise conforming to the requirements of section 1153(b)(5) of this title .
  • (2)
    • (A)
      • (i) Except as provided in clause (ii) and subparagraph (B), a petition under subsection (c)(1)(A) shall be filed during the 90-day period immediately preceding the second anniversary of the alien investor’s lawful admission for permanent residence.
      • (ii) Aliens described in subclauses (I)(bb) and (II) of section 1153(b)(5)(M)(ii) of this title shall file a petition under subsection (c)(1)(A) during the 90-day period before the second anniversary of the subsequent investment.
    • (B) Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Secretary of Homeland Security good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A).
    • (C) In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Attorney General may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B).
  • (3)
    • (A) The interview under subsection (c)(1)(B) shall be conducted within 90 days after the date of submitting a petition under subsection (c)(1)(A) and at a local office of the Department of Homeland Security, designated by the Secretary of Homeland Security, which is convenient to the parties involved.
    • (B) The Secretary of Homeland Security, in the Secretary’s discretion, may waive the deadline for an interview under subsection (c)(1)(B) or the requirement for such an interview according to criteria developed by U.S. Citizenship and Immigration Services, in consultation with its Fraud Detection and National Security Directorate and U.S. Immigration and Customs Enforcement, provided that such criteria do not include a reduction of case processing times or the allocation of adjudicatory resources. A waiver may not be granted under this subparagraph if the alien to be interviewed—
      • (i) invested in a regional center, new commercial enterprise, or job-creating entity that was sanctioned under section 1153(b)(5) of this title ; or
      • (ii) is in a class of aliens determined by the Secretary to be threats to public safety or national security.
• (e) For purposes of subchapter III, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence.
• (f) In this section:
  • (1) The term “alien investor” means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) under section 1153(b)(5) of this title .
  • (2) The term “alien spouse” and the term “alien child” mean an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the spouse or child, respectively, of an alien investor.
  • (3) The term “commercial enterprise” includes any entity formed for the purpose of doing for-profit business.