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AND NATIONALITY ACT \ INA: ACT 212 - GENERAL CLASSES OF ALIENS
INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF
INADMISSIBILLITY
INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND
INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY
Sec. 212. [8 U.S.C. 1182]
(
a)
Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise
provided in this Act, aliens who are inadmissible under the following paragraphs
are ineligible to receive visas and ineligible to be admitted to the United
States:
(
1)
Health-related grounds.-
(
A)
In general.-Any alien-
(
i)
who is
determined (in accordance with regulations prescribed by the Secretary of Health
and Human Services) to have a communicable disease of public health
significance;
1b
(
ii)
1except as provided in subparagraph (C)
1a who seeks admission as an
immigrant, or who seeks adjustment of status to the status of an alien lawfully
admitted for permanent residence, and who has failed to present documentation of
having received vaccination against vaccine-preventable diseases, which shall
include at least the following diseases: mumps, measles, rubella, polio, tetanus
and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any
other vaccinations against vaccine-preventable diseases recommended by the
Advisory Committee for Immunization Practices,
(iii)
who is determined (in accordance with regulations prescribed by the
Secretary of Health and Human Services in consultation with the Attorney
General)-
(
I)
to have a physical or mental disorder and behavior associated with the
disorder that may pose, or has posed, a threat to the property, safety, or
welfare of the alien or others, or
(
II)
to have had a physical or mental disorder and a history of behavior
associated with the disorder, which behavior has posed a threat to the property,
safety, or welfare of the alien or others and which behavior is likely to recur
or to lead to other harmful behavior, or
(
iv)
who is determined (in accordance with regulations prescribed by the
Secretary of Health and Human Services) to be a drug abuser or addict, is
inadmissible.
(
B)
Waiver authorized.-For provision authorizing waiver of certain clauses of
subparagraph (A), see subsection (g).
(
C)
1EXCEPTION FROM IMMUNIZATION REQUIREMENT FOR ADOPTED CHILDREN 10 YEARS
OF AGE OR YOUNGER.--Clause (ii) of subparagraph (A) shall not apply to a child
who--
(
i) i
s 10 years of age or younger,
(ii) is described in section subparagraph (F) or (G) of section
101(b)(1)(F),
and
1c
(iii) is seeking an immigrant visa as an immediate relative under section
201(b), if, prior to the admission of the child, an adoptive parent or
prospective adoptive parent of the child, who has sponsored the child for
admission as an immediate relative, has executed an affidavit stating that the
parent is aware of the provisions of subparagraph (A)(ii) and will ensure that,
within 30 days of the child's admission, or at the earliest time that is
medically appropriate, the child will receive the vaccinations identified in
such subparagraph.
(
2)
Criminal and related grounds.-
(
A)
Conviction of certain crimes.-
(
i)
In general.-Except as provided in clause (ii), any alien convicted of, or
who admits having committed, or who admits committing acts which constitute the
essential elements of-
(
I)
a crime involving moral turpitude (other than a purely political offense)
or an attempt or conspiracy to commit such a crime, or
(I
I)
a violation o
f (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States, or a foreign country relating to a
controlled substance (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), is inadmissible.
(
ii)
Exception.-Clause (i)(I) shall not apply to an alien who committed only
one crime if-
(
I)
the crime was committed when the alien was under 18 years of age, and the
crime was committed (and the alien released from any confinement to a prison or
correctional institution imposed for the crime) more than 5 years before the
date of application for a visa or other documentation and the date of
application for admission to the United States, or
(I
I)
the maximum penalty possible for the crime of which the alien was
convicted (or which the alien admits having committed or of which the acts that
the alien admits having committed constituted the essential elements) did not
exceed imprisonment for one year and, if the alien was convicted of such crime,
the alien was not sentenced to a term of imprisonment in excess of 6 months
(regardless of the extent to which the sentence was ultimately executed).
(
B)
Multiple criminal convictions.-Any alien convicted of 2 or more offenses
(other than purely political offenses), regardless of whether the conviction was
in a single trial or whether the offenses arose from a single scheme of
misconduct and regardless of whether the offenses involved moral turpitude, for
which the aggregate sentences to confinement
2 were 5 years or more is
inadmissible.
(
C)
2aCONTROLLED SUBSTANCE TRAFFICKERS- Any alien who the consular officer
or the Attorney General knows or has reason to believe--
(i) is or has been an illicit trafficker in any controlled substance or in
any listed chemical (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister,
conspirator, or colluder with others in the illicit trafficking in any such
controlled or listed substance or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i),
has, within the previous 5 years, obtained any financial or other benefit from
the illicit activity of that alien, and knew or reasonably should have known
that the financial or other benefit was the product of such illicit activity, is
inadmissible.
(
D)
Prostitution and commercialized vice.-Any alien who-
(i)
is coming to the United States solely, principally, or incidentally to
engage in prostitution, or has engaged in prostitution within 10 years of the
date of application for a visa, admission, or adjustment of status,
(ii)
directly or indirectly procures or attempts to procure, or (within 10
years of the date of application for a visa, admission, or adjustment of status)
procured or attempted to procure or to import, prostitutes or persons for the
purpose of prostitution, or receives or (within such 10- year period) received,
in whole or in part, the proceeds of prostitution, or
(iii)
is coming to the United States to engage in any other unlawful
commercialized vice, whether or not related to prostitution, is inadmissible.
(
E)
Certain aliens involved in serious criminal activity who have asserted
immunity from prosecution.-Any alien-
(i)
who has committed in the United States at any time a serious criminal
offense (as defined in section
101(h)),
(ii)
for whom immunity from criminal jurisdiction was exercised with respect
to that offense,
(iii)
who as a consequence of the offense and exercise of immunity has
departed from the United States, and
(iv)
who has not subsequently submitted fully to the jurisdiction of the
court in the United States having jurisdiction with respect to that offense, is
inadmissible.
(
F)
Waiver authorized.-For provision authorizing waiver of certain
subparagraphs of this paragraph, see subsection (h).
(
G)
2b2cFOREIGN GOVERNMENT OFFICIALS WHO HAVE COMMITTED PARTICULARLY
SEVERE VIOLATIONS OF RELIGIOUS FREEDOM- Any alien who, while serving as a
foreign government official, was responsible for or directly carried out, at any
time, particularly severe violations of religious freedom, as defined in section
3 of the International Religious Freedom Act of 1998 (22 U.S.C. 6402), is
inadmissible.
(
H)
2bbSIGNIFICANT TRAFFICKERS IN PERSONS-
(i)
IN GENERAL- Any alien who commits or conspires to commit human
trafficking offenses in the United States or outside the United States,
42 or
who the consular officer, the Secretary of Homeland Security, the Secretary of
State,
42 or the Attorney General knows or has reason to believe is or has been
a knowing aider, abettor, assister, conspirator, or colluder with such a
trafficker in severe forms of trafficking in persons, as defined in the section
103 of such Act, is inadmissible.
(ii) BENEFICIARIES OF TRAFFICKING- Except as provided in clause (iii), any
alien who the consular officer or the Attorney General knows or has reason to
believe is the spouse, or daughter of an alien inadmissible under clause (i),
has, within the previous 5 years, obtained any financial or other benefit from
the illicit activity of that alien, and knew or reasonably should have known
that the financial or other benefit was the product of such illicit activity, is
inadmissible.
(iii) EXCEPTION FOR CERTAIN SONS AND DAUGHTERS- Clause (ii) shall not apply
to a son or daughter who was a child at the time he or she received the benefit
described in such clause.
(
I)
2bbbMONEY LAUNDERING- Any alien--
(i) who a consular officer or the Attorney General knows, or has reason to
believe, has engaged, is engaging, or seeks to enter the United States to
engage, in an offense which is described in section 1956 or 1957 of title 18,
United States Code (relating to laundering of monetary instruments); or
(ii) who a consular officer or the Attorney General knows is, or has been, a
knowing aider, abettor, assister, conspirator, or colluder with others in an
offense which is described in such section; is inadmissible.
(
3)
Security and related grounds.-
(
A)
In general.-Any alien who a consular officer or the Attorney General
knows, or has reasonable ground to believe, seeks to enter the United States to
engage solely, principally, or incidentally in-
(i)
any activity (
I) to violate any law of the United States relating to
espionage or sabotage or (
II) to violate or evade any law prohibiting the export
from the United States of goods, technology, or sensitive information,
(ii)
any other unlawful activity, or
(iii)
any activity a purpose of which is the opposition to, or the control or
overthrow of, the Government of the United States by force, violence, or other
unlawful means, is inadmissible.
(
B)
Terrorist activities-
(
i)
3
4
4aIN GENERAL.-Any alien who-
(I)
has engaged in a terrorist activity,
(II)
a consular officer, the Attorney General, or the Secretary of Homeland
Security knows, or has reasonable ground to believe, is engaged in or is likely
to engage after entry in any terrorist activity (as defined in clause (iv));
(III)
has, under circumstances indicating an intention to cause death or
serious bodily harm, incited terrorist activity;
(IV)
is a representative (as defined in clause (v)) of--
(aa) a terrorist organization (as defined in clause (vi)); or
(bb) a political, social, or other group that endorses or espouses terrorist
activity;
(V)
is a member of a terrorist organization described in subclause (I) or
(II) of clause (vi);
(VI)
is a member of a terrorist organization described in clause (vi)(III),
unless the alien can demonstrate by clear and convincing evidence that the alien
did not know, and should not reasonably have known, that the organization was a
terrorist organization;
(VII)
endorses or espouses terrorist activity or persuades others to endorse
or espouse terrorist activity or support a terrorist organization;
(VIII)
has received military-type training (as defined in section 2339D(c)(1)
of title 18, United States Code) from or on behalf of any organization that, at
the time the training was received, was a terrorist organization (as defined in
clause (vi)); or
(IX)
is the spouse or child of an alien who is inadmissible under this
subparagraph, if the activity causing the alien to be found inadmissible
occurred within the last 5 years, is inadmissible.
An alien who is an officer, official,
representative, or spokesman of the Palestine Liberation Organization is
considered, for purposes of this chapter, to be engaged in a terrorist
activity.
4 (
ii) EXCEPTION- Subclause (IX)
4d of clause(i) does not apply to a spouse
or child--
(I) who did not know or should not reasonably have known of the activity
causing the alien to be found inadmissible under this section; or
(II) whom the consular officer or Attorney General has reasonable grounds to
believe has renounced the activity causing the alien to be found inadmissible
under this section.
4 (
iii)
TERRORIST ACTIVITY DEFINED.-As used in this Act, the term "terrorist
activity" means any activity which is unlawful under the laws of the place where
it is committed (or which, if
4 it had been committed in the United States,
would be unlawful under the laws of the United States or any State) and which
involves any of the following:
(I) The highjacking or sabotage of any conveyance (including an aircraft,
vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or continue
to detain, another individual in order to compel a third person (including a
governmental organization) to do or abstain from doing any act as an explicit or
implicit condition for the release of the individual seized or detained.
(III) A violent attack upon an internationally protected person (as defined
in section 1116(b)(4) of title 18, United States Code) or upon the liberty of
such a person.
(IV) An assassination.
(V) The use of any-
(aa) biological agent, chemical agent, or nuclear weapon or device, or
(bb) explosive,
4 firearm, or other weapon or dangerous device (other than
for mere personal monetary gain), with intent to endanger, directly or
indirectly, the safety of one or more individuals or to cause substantial damage
to property.
(VI) A threat, attempt, or conspiracy to do any of the foregoing.
(i
v)
44bENGAGE IN TERRORIST ACTIVITY DEFINED- As used in this chapter, the
term "engage in terrorist activity" means, in an individual capacity or as a
member of an organization-
(I) to commit or to incite to commit, under circumstances indicating an
intention to cause death or serious bodily injury, a terrorist activity;
(II) to prepare or plan a terrorist activity;
(III) to gather information on potential targets for terrorist activity;
(IV) to solicit funds or other things of value for--
(aa) a terrorist activity;
(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc) a terrorist organization described in clause (vi)(III), unless the
solicitor can demonstrate by clear and convincing evidence that he did not know,
and should not reasonably have known, that the organization was a terrorist
organization;
(V) to solicit any individual--
(aa) to engage in conduct otherwise described in this subsection;
(bb) for membership in a terrorist organization described in clause (vi)(I)
or (vi)(II); or
(cc) for membership in a terrorist organization described in clause (vi)(III)
unless the solicitor can demonstrate by clear and convincing evidence that he
did not know, and should not reasonably have known, that the organization was a
terrorist organization; or
(V
I)
to commit an act that the actor knows, or reasonably should know,
affords material support, including a safe house, transportation,
communications, funds, transfer of funds or other material financial benefit,
false documentation or identification, weapons (including chemical, biological,
or radiological weapons), explosives, or training--
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has
committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in subclause (I) or (II) of clause
(vi) or to any member of such an organization; or
(dd) to a terrorist organization described in clause (vi)(III), or to any
member of such an organization, unless the actor can demonstrate by clear and
convincing evidence that the actor did not know, and should not reasonably have
known, that the organization was a terrorist organization.
5 (
v) REPRESENTATIVE DEFINED.-As used in this paragraph, the term
"representative" includes an officer, official, or spokesman of an organization,
and any person who directs, counsels, commands, or induces an organization or
its members to engage in terrorist activity.
(
vi)
5a4cTERRORIST ORGANIZATION DEFINED- As used in this section, the term
'terrorist organization' means an organization?
(I)
designated under section
219;
(II) otherwise designated, upon publication in the Federal Register, by the
Secretary of State in consultation with or upon the request of the Attorney
General or the Secretary of Homeland Security, as a terrorist organization,
after finding that the organization engages in the activities described in
subclauses (I) through (VI) of clause (iv); or
(III) t
hat is a group of two or more individuals, whether organized or not,
which engages in, or has a subgroup which engages in, the activities described
in subclauses (I) through (VI) of clause (iv).
(i)
In general.-An alien whose entry or proposed activities in the United
States the Secretary of State has reasonable ground to believe would have
potentially serious adverse foreign policy consequences for the United States is
inadmissible.
(ii)
Exception for officials.-An alien who is an official of a foreign
government or a purported government, or who is a candidate for election to a
foreign government office during the period immediately preceding the election
for that office, shall not be excludable or subject to restrictions or
conditions on entry into the United States under clause (i) solely because of
the alien's past, current, or expected beliefs, statements, or associations, if
such beliefs, statements, or associations would be lawful within the United
States.
(iii)
Exception for other aliens.-An alien, not described in clause (ii),
shall not be excludable or subject to restrictions or conditions on entry into
the United States under clause (i) because of the alien's past, current, or
expected beliefs, statements, or associations, if such beliefs, statements, or
associations would be lawful within the United States, unless the Secretary of
State personally determines that the alien's admission would compromise a
compelling United States foreign policy interest.
(iv)
Notification of determinations.-If a determination is made under clause
(iii) with respect to an alien, the Secretary of State must notify on a timely
basis the chairmen of the Committees on the Judiciary and Foreign Affairs of the
House of Representatives and of the Committees on the Judiciary and Foreign
Relations of the Senate of the identity of the alien and the reasons for the
determination.
(
D)
Immigrant membership in totalitarian party.-
(i)
In general.-Any immigrant who is or has been a member of or affiliated
with the Communist or any other totalitarian party (or subdivision or affiliate
thereof), domestic or foreign, is inadmissible.
(ii)
Exception for involuntary membership.-Clause (i) shall not apply to an
alien because of membership or affiliation if the alien establishes to the
satisfaction of the consular officer when applying for a visa (or to the
satisfaction of the Attorney General when applying for admission) that the
membership or affiliation is or was involuntary, or is or was solely when under
16 years of age, by operation of law, or for purposes of obtaining employment,
food rations, or other essentials of living and whether necessary for such
purposes.
(iii)
Exception for past membership.-Clause (i) shall not apply to an alien
because of membership or affiliation if the alien establishes to the
satisfaction of the consular officer when applying for a visa (or to the
satisfaction of the Attorney General when applying for admission) that-
(I) the membership or affiliation terminated at least-
(aa) 2 years before the date of such application, or
(bb) 5 years before the date of such application, in the case of an alien
whose membership or affiliation was with the party controlling the government of
a foreign state that is a totalitarian dictatorship as of such date, and
(II) the alien is not a threat to the security of the United States.
(iv)
Exception for close family members.-The Attorney General may, in the
Attorney General's discretion, waive the application of clause (i) in the case
of an immigrant who is the parent, spouse, son, daughter, brother, or sister of
a citizen of the United States or a spouse, son, or daughter of an alien
lawfully admitted for permanent residence for humanitarian purposes, to assure
family unity, or when it is otherwise in the public interest if the immigrant is
not a threat to the security of the United States.
(
E)
5aaaPARTICIPANTS IN NAZI PERSECUTION, GENOCIDE, OR THE COMMISSION OF
ANY ACT OF TORTURE OR EXTRAJUDICIAL KILLING
(i) Participation in nazi persecutions.-Any alien who, during the period
beginning on March 23, 1933, and ending on May 8, 1945, under the direction of,
or in association with-
(I) the Nazi government of Germany,
(II) any government in any area occupied by the military forces of the Nazi
government of Germany,
(III) any government established with the assistance or cooperation of the
Nazi government of Germany, or
(IV) any government which was an ally of the Nazi government of Germany,
ordered, incited, assisted, or otherwise participated in the persecution of any
person because of race, religion, national origin, or political opinion is
inadmissible.
(ii)
Participation in genocide.-Any alien who
5aaa ordered, incited,
assisted, or otherwise participated
5ab in genocide, as defined in section
1091(a) of title 18, United States Code, is inadmissible.
(iii)
5aaa COMMISSION OF ACTS OF TORTURE OR EXTRAJUDICIAL KILLINGS- Any
alien who, outside the United States, has committed, ordered, incited, assisted,
or otherwise participated in the commission of--
(I) any act of torture, as defined in section 2340 of title 18, United States
Code; or
(II) under color of law of any foreign nation, any extrajudicial killing, as
defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C.
1350 note), is inadmissible.
5aa (F) ASSOCIATION WITH TERRORIST ORGANIZATIONS- Any alien who the
Secretary of State, after consultation with the Attorney General, or the
Attorney General, after consultation with the Secretary of State, determines has
been associated with a terrorist organization and intends while in the United
States to engage solely, principally, or incidentally in activities that could
endanger the welfare, safety, or security of the United States is inadmissible.
(G)
41 RECRUITMENT OR USE OF CHILD SOLDIERS- Any alien who has engaged in
the recruitment or use of child soldiers in violation of section 2442 of title
18, United States Code, is inadmissible.
(
A)
In general.-Any
alien who, in the opinion of the consular officer at the time of application for
a visa, or in the opinion of the Attorney General at the time of application for
admission or adjustment of status, is likely at any time to become a public
charge is inadmissible.
6
(
B)
Factors to be taken into account.- (i)
In determining whether an alien is
excludable under this paragraph, the consular officer or the Attorney General
shall at a minimum consider the alien's-
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial status; and
(V) education and skills
(ii)
In addition to the factors under clause (i), the consular officer or the
Attorney General may also consider any affidavit of support under section
213A
for purposes of exclusion under this paragraph.
(
C)
Family-Sponsored immigrants.-Any alien who seeks admission or adjustment
of status under a visa issued under section
201(b)(2) or
203(a) is excludable
under this paragraph unless-
((i)
the alien has obtained-
(I) status as a spouse or a child of a United States citizen pursuant to
clause (ii), (iii), or (iv) or section
204(a)(1)(A), or
(II) classification pursuant to clause (ii) or (iii) of section
204(a)(1)(B);
6aa
(III)
6aa classification or status as a VAWA self-petitioner; or
(ii)
the person petitioning for the alien's admission
6aa (and any additional
sponsor required under section
213A(f) or any alternative sponsor permitted
under paragraph (5)(B) of such section) has executed an affidavit of support
described in section
213A with respect to such alien.
(
D)
Certain employment-based immigrants.-Any alien who seeks admission or
adjustment of status under a visa number issued under section
203(b) by virtue
of a classification petition filed by a relative of the alien (or by an entity
in which such relative has a significant ownership interest) is excludable under
this paragraph unless such relative has executed an affidavit of support
described in section
213A with respect to such alien.
(
E)
6ab Special Rule for Qualified Aliens. - Subparagraphs (A), (B), and
(C) shall not apply to an alien who -
(i) is a VAWA self-petitioner;
(ii) is an applicant for, or is granted, nonimmigrant status
under section 101(a)(15)(U); or
(iii) is a qualified alien described in section 431(c) of the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8
U.S.C. 1641(c)).
(
5)
Labor certification and qualifications for certain immigrants.-
(
A)
Labor certification.-
(
i) I
n general.-Any alien who seeks to enter the United States for the
purpose of performing skilled or unskilled labor is inadmissible, unless the
Secretary of Labor has determined and certified to the Secretary of State and
the Attorney General that-
(I)
there are not sufficient workers who are able, willing, qualified (or
equally qualified in the case of an alien described in clause (ii)) and
available at the time of application for a visa and admission to the United
States and at the place where the alien is to perform such skilled or unskilled
labor, and
(II) the employment of such alien will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
(
ii)
Certain aliens subject to special rule.-For purposes of clause (i)(I),
an alien described in this clause is an alien who-
(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the arts.
(
iii)
7PROFESSIONAL ATHLETES-
(I) In general.-A certification made under clause (i) with
respect to a professional athlete shall remain valid with respect to the athlete
after the athlete changes employer, if the new employer is a team in the same
sport as the team which employed the athlete when the athlete first applied for
certification.
(II)
Definition.-For purposes of subclause (I), the term "professional
athlete" means an individual who is employed as an athlete by-
(aa) a team that is a member of an association of 6 or more
professional sports teams whose total combined revenues exceed $10,000,000 per
year, if the association governs the conduct of its members and regulates the
contests and exhibitions in which its member teams regularly engage; or
(bb) any minor league team that is affiliated with such an association.
(
iv)
7LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause
(i) with respect to an individual whose petition is covered by section
204(j)
shall remain valid with respect to a new job accepted by the individual after
the individual changes jobs or employers if the new job is in the same or a
similar occupational classification as the job for which the certification was
issued.
(B) Unqualified physicians.-An alien who is a graduate of a medical school
not accredited by a body or bodies approved for the purpose by the Secretary of
Education (regardless of whether such school of medicine is in the United
States) and who is coming to the United States principally to perform services
as a member of the medical profession is inadmissible, unless the alien (i) has
passed parts I and II of the National Board of Medical Examiners Examination (or
an equivalent examination as determined by the Secretary of Health and Human
Services) and (ii) is competent in oral and written English. For purposes of the
previous sentence, an alien who is a graduate of a medical school shall be
considered to have passed parts I and II of the National Board of Medical
Examiners if the alien was fully and permanently licensed to practice medicine
in a State on January 9, 1978, and was practicing medicine in a State on that
date.
(
C)
Uncertified foreign health-care workers
7 Subject to subsection (r),
any alien who seeks to enter the United States for the purpose of performing
labor as a health-care worker, other than a physician, is excludable unless the
alien presents to the consular officer, or, in the case of an adjustment of
status, the Attorney General, a certificate from the Commission on Graduates of
Foreign Nursing Schools, or a certificate from an equivalent independent
credentialing organization approved by the Attorney General in consultation with
the Secretary of Health and Human Services, verifying that-
(i) the alien's education, training, license, and experience-
(I) meet all applicable statutory and regulatory requirements for entry into
the United States under the classification specified in the application;
(II) are comparable with that required for an American health-care worker of
the same type; and
(III) are authentic and, in the case of a license, unencumbered;
(ii) the alien has the level of competence in oral and written English
considered by the Secretary of Health and Human Services, in consultation with
the Secretary of Education, to be appropriate for health care work of the kind
in which the alien will be engaged, as shown by an appropriate score on one or
more nationally recognized, commercially available, standardized assessments of
the applicant's ability to speak and write; and
(iii) if a majority of States licensing the profession in which the alien
intends to work recognize a test predicting the success on the profession's
licensing or certification examination, the alien has passed such a test, or has
passed such an examination.
For purposes of clause (ii), determination of the standardized tests required
and of the minimum scores that are appropriate are within the sole discretion of
the Secretary of Health and Human Services and are not subject to further
administrative or judicial review.
(
D)
Application of grounds.-The grounds of inadmissibility of aliens under
subparagraphs (A) and (B) shall apply to immigrants seeking admission or
adjustment of status under paragraph (2) or (3) of section
203(b).
(
6)
Illegal entrants and immigration violators.-
(
A)
8ALIENS PRESENT WITHOUT admission or parole.-
(i) I
n general.-An alien present in the United States without being admitted
or paroled, or who arrives in the United States at any time or place other than
as designated by the Attorney General, is inadmissible.
(ii) Exception for certain battered women and children.-Clause (hall not
apply to an alien who demonstrates that-
(I) the alien is a VAWA self-petitioner;
6aa
(II)(II)(a)
the alien has been battered or subjected to extreme cruelty by a
spouse or parent, or by a member of the spouse's or parent's family residing in
the same household as the alien and the spouse or parent consented or acquiesced
to such battery or cruelty, or (b) the alien's child has been battered or
subjected to extreme cruelty by a spouse or parent of the alien (without the
active participation of the alien in the battery or cruelty) or by a member of
the spouse's or parent's family residing in the same household as the alien
when the spouse or parent consented to or acquiesced in such battery or cruelty
and the alien did not actively participate in such battery or cruelty, and
(III) there was a substantial connection between the battery or cruelty
described in subclause (I) or (II) and the alien's unlawful entry into the
United States.
(
B)
Failure to attend removal proceeding.-Any alien who without reasonable
cause fails or refuses to attend or remain in attendance at a proceeding to
determine the alien's inadmissibility or deportability and who seeks admission
to the United States within 5 years of such alien's subsequent departure or
removal is inadmissible.
(i)
In general.-Any alien who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or has sought to procure or has procured) a
visa, other documentation, or admission into the United States or other benefit
provided under this Act is inadmissible.
(ii
)
9FALSELY CLAIMING CITIZENSHIP-
(I)
IN GENERAL- Any alien who falsely represents, or has falsely represented,
himself or herself to be a citizen of the United States for any purpose or
benefit under this Act (including section
274A) or any other Federal or State
law is inadmissible.
(II)
EXCEPTION- In the case of an alien making a representation described in
subclause (I), if each natural parent of the alien (or, in the case of an
adopted alien, each adoptive parent of the alien) is or was a citizen (whether
by birth or naturalization), the alien permanently resided in the United States
prior to attaining the age of 16, and the alien reasonably believed at the time
of making such representation that he or she was a citizen, the alien shall not
be considered to be inadmissible under any provision of this subsection based on
such representation.
(iii)
Waiver authorized.-For provision authorizing waiver of clause (i), see
subsection (I).
(
D)
Stowaways.-Any alien who is a stowaway is inadmissible.
(i)
In general.-Any alien who at any time knowingly has encouraged, induced,
assisted, abetted, or aided any other alien to enter or to try to enter the
United States in violation of law is inadmissible.
(ii)
Special rule in the case of family reunification.-Clause (i) shall not
apply in the case of alien who is an eligible immigrant (as defined in section
301(b)(1) of the Immigration Act of 1990), was physically present in the United
States on May 5, 1988, and is seeking admission as an immediate relative or
under section
203(a)(2) (including under section 112 of the Immigration Act of
1990) or benefits under section
301(a) of the Immigration Act of 1990 if the
alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided
only the alien's spouse, parent, son, or daughter (and no other individual) to
enter the United States in violation of law.
(iii)
Waiver authorized.-For provision authorizing waiver of clause (i), see
subsection (d)(11).
(
F) S
ubject of civil penalty.-
(i)
In general.-An alien who is the subject of a final order for violation of
section
274C is inadmissible.
(ii)(ii)
Waiver authorized.-For provision
authorizing waiver of clause (i), see subsection (d)(12).
10
(
G)
Student visa abusers.-An alien who obtains the status of a nonimmigrant
under section
101(a)(15)(F)(i) and who violates a term or condition of such
status under section
214(l)
is excludable until the alien has been outside the United States for a
continuous period of 5 years after the date of the violation.
11
(
7)
Documentation requirements.-
(i)
In general.-Except as otherwise specifically provided in this Act, any
immigrant at the time of application for admission-
(I)
who is not in possession of a valid unexpired immigrant visa, reentry
permit, border crossing identification card, or other valid entry document
required by this Act, and a valid unexpired passport, or other suitable travel
document, or document of identity and nationality if such document is required
under the regulations issued by the Attorney General under section
211(a) or
(II)
whose visa has been issued without compliance with the provisions of
section 203, is inadmissible.
(ii)
Waiver authorized.-For provision authorizing waiver of clause (i), see
subsection (k).
(i)
In general.-Any nonimmigrant who-
(I)
is not in possession of a passport valid for a minimum of six months from
the date of the expiration of the initial period of the alien's admission or
contemplated initial period of stay authorizing the alien to return to the
country from which the alien came or to proceed to and enter some other country
during such period, or
(II)
is not in possession of a valid nonimmigrant visa or border crossing
identification card at the time of application for admission, is inadmissible.
(ii)
General waiver authorized.-For provision authorizing waiver of clause (i),
see subsection (d)(4).
(
iii)
GUAM AND
NORTHERN MARIANA ISLANDS VISA WAIVER- For provision authorizing waiver of clause
(i) in the case of visitors to Guam or the Commonwealth of the Northern Mariana
Islands, see subsection (l).
38
(
iv)
VISA WAIVER
11 PROGRAM.-For authority to waive the requirement of
clause (i) under a
11a program, see section
217.
(
8)
Ineligible for citizenship.-
(
A)
In general.-Any immigrant who is permanently ineligible to citizenship is
inadmissible.
(
B)
Draft evaders.-Any person who has departed from or who has remained
outside the United States to avoid or evade training or service in the armed
forces in time of war or a period declared by the President to be a national
emergency is inadmissible, except that this subparagraph shall not apply to an
alien who at the time of such departure was a nonimmigrant and who is seeking to
reenter the United States as a nonimmigrant.
(
9)
12ALIENS PREVIOUSLY REMOVED.-
(
A)
Certain aliens previously removed.-
(i)
Arriving aliens.-Any alien who has been ordered removed under section
235(b)(1) or at the end of proceedings under section 240 initiated upon the
alien's arrival in the United States and who again seeks admission within 5
years of the date of such removal (or within 20 years in the case of a second or
subsequent removal or at any time in the case of an alien convicted of an
aggravated felony) is inadmissible.
(ii)
Other aliens.-Any alien not described in clause (i) who-
(I) has been ordered removed under section
240 or any other provision of law,
or
(II) departed the United States while an order of removal was outstanding,
and who seeks admission within 10 years of the date of such alien's departure or
removal (or within 20 years of such date in the case of a second or subsequent
removal or at any time in the case of an alien convicted of an aggravated
felony) is inadmissible.
(iii)
Exception.-Clauses (i) and (ii) shall not apply to an alien seeking
admission within a period if, prior to the date of the alien's reembarkation at
a place outside the United States or attempt to be admitted from foreign
contiguous territory, the Attorney General has consented to the alien's
reapplying for admission.
(
B)
13ALIENS UNLAWFULLY PRESENT.-
(i)
In general.-Any alien (other than an alien lawfully admitted for
permanent residence) who-
(I)
was unlawfully present in the United States for a period of more than 180
days but less than 1 year, voluntarily departed the United States (whether or
not pursuant to section
244(e)) prior to the commencement of proceedings under
section
235(b)(1) or section
240, and again seeks admission within 3 years of
the date of such alien's departure or removal, or
(II)
has been unlawfully present in the United States for one year or more,
and who again seeks admission within 10 years of the date of such alien's
departure or removal from the United States is inadmissible.
(ii)
Construction of unlawful presence.-For purposes of this paragraph, an
alien is deemed to be unlawfully present in the United States if the alien is
present in the United States after the expiration of the period of stay
authorized by the Attorney General or is present in the United States without
being admitted or paroled.
(I)
Minors.-No period of time in which an alien is under 18 years of age
shall be taken into account in determining the period of unlawful presence in
the United States under clause (i).
(II)
Asylees.-No period of time in which an alien has a bona fide application
for asylum pending under section
208 shall be taken into account in determining
the period of unlawful presence in the United States under clause (i) unless the
alien during such period was employed without authorization in the United
States.
(III)
Family unity.-No period of time in which the alien is a beneficiary of
family unity protection pursuant to section
301 of the Immigration Act of 1990
14 shall be taken into account in determining the period of unlawful presence
in the United States under clause (i).
(IV)
Battered women and children.-Clause (i) shall not apply to an alien who
would be described in paragraph (6)(A)(ii) if "violation of the terms of the
alien's nonimmigrant visa" were substituted for "unlawful entry into the United
States" in subclause (III) of that paragraph.
(V)
13aVICTIMS OF A SEVERE FORM OF TRAFFICKING IN PERSONS- Clause (i) shall
not apply to an alien who demonstrates that the severe form of trafficking (as
that term is defined in section 103 of the Trafficking Victims Protection Act of
2000 (22 U.S.C. 7102)) was at least one central reason for the alien's unlawful
presence in the United States.
(iv)
Tolling for good cause.-In the case of an alien who-
(I) has been lawfully admitted or paroled into the United States,
(II) has filed a nonfrivolous application for a change or extension of status
before the date of expiration of the period of stay authorized by the Attorney
General, and
(III) has not been employed without authorization in the United States before
or during the pendency of such application, the calculation of the period of time
specified in clause (i)(I) shall be tolled during the pendency of such
application, but not to exceed 120 days.
(v)
Waiver.-The Attorney General has sole discretion to waive clause (i) in
the case of an immigrant who is the spouse or son or daughter of a United States
citizen or of an alien lawfully admitted for permanent residence, if it is
established to the satisfaction of the Attorney General that the refusal of
admission to such immigrant alien would result in extreme hardship to the
citizen or lawfully resident spouse or parent of such alien. No court shall have
jurisdiction to review a decision or action by the Attorney General regarding a
waiver under this clause.
(
C)
Aliens unlawfully present after previous immigration violations.-
(i)
In general.-Any alien who-
(I)
has been unlawfully present in the United States for an aggregate period
of more than 1 year, or
(II)
has been ordered removed under section
235(b)(1), section
240, or any
other provision of law, and who enters or attempts to reenter the United States
without being admitted is inadmissible.
(ii)
Exception.-Clause (i) shall not apply to an alien seeking admission more
than 10 years after the date of the alien's last departure from the United
States if, prior to the alien's reembarkation at a place outside the United
States or attempt to be readmitted from a foreign contiguous territory,
14a6aa the Secretary of Homeland Security has consented to the alien's reapplying
for admission.
(iii)
6aaWAIVER- The Secretary of Homeland Security may waive the
application of clause (i) in the case of an alien who is a VAWA self-petitioner
if there is a connection between--
(I) the alien's battering or subjection to extreme cruelty; and
(II) the alien's removal, departure from the United States, reentry or
reentries into the United States; or attempted reentry into the United States.
(
A)
Practicing polygamists.-Any immigrant who is coming to the United States
to practice polygamy is inadmissible.
(
B)
Guardian required to accompany helpless alien.-Any alien-
(i)
who is accompanying another alien who is inadmissible and who is
certified to be helpless from sickness, mental or physical disability, or
infancy pursuant to section
232(c), and
(ii)
whose protection or guardianship is determined to be
required by the alien described in clause (I), is inadmissible.
16
(
C)
International child abduction.-
(i) I
n general.-Except as provided in clause (ii), any alien who, after entry
of an order by a court in the United States granting custody to a person of a
United States citizen child who detains or retains the child, or withholds
custody of the child, outside the United States from the person granted custody
by that order, is inadmissible until the child is surrendered to the person
granted custody by that order.
16a
(ii) ALIENS SUPPORTING ABDUCTORS AND RELATIVES OF ABDUCTORS. -- Any
alien who--
(I) is known by the Secretary of State to have intentionally assisted an
alien in the conduct described in clause (i),
(II) is known by the Secretary of State to be intentionally providing
material support or safe haven to an alien described in clause (i), or
(III) is a spouse (other than the spouse who is the parent of the abducted
child), child (other than the abducted child), parent, sibling, or agent of an
alien described in clause (i), if such person has been designated by the
Secretary of State at the Secretary's sole and unreviewable discretion, is
inadmissible until the child described in clause (i) is surrendered to the
person granted custody by the order described in that clause, and such person
and child are permitted to return to the United States or such person's place of
residence.
(iii) EXCEPTIONS. -- Clauses (i) and (ii) shall not apply--
(I) to a government official of the United States who is acting within the
scope of his or her official duties;
(II) to a government official of any foreign government if the official has
been designated by the Secretary of State at the Secretary's sole and
unreviewable discretion; or
(III) so long as the child is located in a foreign state that is a party to
the Convention on the Civil Aspects of International Child Abduction, done at
The Hague on October 25, 1980.
(i) IN GENERAL- Any alien who has voted in violation of any Federal, State,
or local constitutional provision, statute, ordinance, or regulation is
inadmissible.
(ii) EXCEPTION- In the case of an alien who voted in a Federal, State, or
local election (including an initiative, recall, or referendum) in violation of
a lawful restriction of voting to citizens, if each natural parent of the alien
(or, in the case of an adopted alien, each adoptive parent of the alien) is or
was a citizen (whether by birth or naturalization), the alien permanently
resided in the United States prior to attaining the age of 16, and the alien
reasonably believed at the time of such violation that he or she was a citizen,
the alien shall not be considered to be inadmissible under any provision of this
subsection based on such violation.
(
E)
Former citizens who renounced citizenship to avoid
taxation.-Any alien who is a former citizen of the United States who officially
renounces United States citizenship and who is determined by the Attorney
General to have renounced United States citizenship for the purpose of avoiding
taxation by the United States is excludable.
18
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