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Law Handbook Immigration and Nationality Act INA—§217

:c tion (d)(3), the alien entre- (2) Period for filing petition. privileges to citizens and nationals of the United States,
il interview before an officer (A) 90-day period before second anniversary. Except and
cing the facts and informa- as provided in subparagraph (B), the petition under subsection (B) is designated as a program country under subsection
). (c)(l)(A) must be filed during the 90-day period before the (c) of this section.
;nt resident status for fail- second anniversary of the alien's lawful admission for perma- (3)2I° Machine readable passport.
>nal interview. nent residence. (A) In general. Except as provided in subparagraph (B),
jf an alien with permanent (B) Date petitions for good cause. Such a petition may on or after October 1,2003, the alien at the time of application
sis under subsection (a), if be considered if filed after such date, but only if the alien es- for admission is in possession of a valid unexpired machine-
spect to the alien in accor- tablishes to the satisfaction of the Attorney General good readable passport that satisfies the internationally accepted
;raph (1)(A), or cause and extenuating circumstances for failure to file the pe- standard for machine readability.
shown, the alien entrepre- tition during the period described in subparagraph (A). (B) Limited waiver authority. For the period beginning
;w described in paragraph (C) Filing of petitions during removal. In the case of an October It<2003, and ending September 30, 2007, the Secre-
alien who is the subject of removal hearings as a result of fail- tary of State may waive the requirement of subparagraph (A)
ure to file a petition on a timely basis in accordance with sub- with respect to nationals of a program country (as designated
ate the permanent resident paragraph (A), the Attorney General may stay such removal
; spouse and children if it under subsection (c)), if die Secretary of State finds that the
proceedings against an alien pending the filing of the petition program country—
s under this section or sec- under subparagraph (B).
•sary of the alien's lawful (i) is making progress toward ensuring that passports
(3) Personal interview. The interview under subsection meeting the requirement of subparagraph (A) are generally
(c)(l)(B) shall be conducted within 90 days after the date of available to its nationals; and
ceeding. In any removal submitting a petition under subsection (c)(l)(A) and at a local
whose permanent resident (ii) has taken appropriate measures to protect against
office of the Service, designated by the Attorney General, misuse of passports die country has issued that do not meet the
graph (A), the burden of which is convenient to the parties involved. The Attorney
'lish compliance with the requirement of subparagraph (A).
General, in the Attorney General's discretion, may waive the (4) Executes immigration forms. The alien before the
•dXB). deadline for such an interview or the requirement for such an
)n and interview. time of such admission completes such immigration form as
interview in such cases as may be appropriate. die Attorney General shall establish.
(e) Treatment of period for purposes of naturalization. (5) Entry into the United States. If arriving by sea or air,
ice with the provisions of For purposes of title IH, in the case of an alien who is in the the alien arrives at the port of entry into the United States on a car-
United States as a lawful permanent resident on a conditional rier, including any carrier conducting operations under part 135 of
ITS at any interview de- basis under this section, the alien shall be considered to have tide 14, Code of Federal Regulations, or a noncommercial aircraft
been admitted as an alien lawfully admitted for permanent resi- that is owned or operated by a domestic corporation conducting
a determination, within dence and to be in the United States as an alien lawfully admit- operations under part 91 of tide 14, Code of Federal Regulations
or interview (whichever ted to the United States for permanent residence. which has entered into an agreement with the Attorney General
information described in (f) Definitions. In this section:
setition are true with re- pursuant to subsection (e). The Attorney General is authorized to
(1) The term "alien entrepreneur" means an alien who ob- require a carrier conducting operations under part 135 of tide 14,
iterprise. tains the status of an alien lawfully admitted for permanent Code of Federal Regulations, or a domestic corporation conduct-
is if favorable determi- residence (whether on a conditional basis or otherwise) under ing operations under part 91 of that tide, to give suitable and proper
nines that such facts and section 203(b)(5). bond, in such reasonable amount and containing such conditions
neral shall so notify the (2) The term "alien spouse" and the term "alien child" as die Attorney General may deem sufficient to ensure compliance
:onditional basis of the mean an alien who obtains the status of an alien lawfully ad- with the indemnification requirements of this section, as a term of
ond anniversary of the mitted for permanent residence (whether on a conditional such an agreement
it residence. basis or otherwise) by virtue of being the spouse or child, re- (6) Not a safety threat The alien has been determined
-ruination. If the Attor- spectively, of an alien entrepreneur. not to represent a threat to die welfare, health, safety, or secu-
ts and informadon are • (3) The term "commercial enterprise" includes a limited rity of the United States.
so notify the alien in- partnership. (7) No previous violation. If die alien previously was ad-
D), shall terminate the
mitted without a visa under this section, the alien must not
:n entrepreneur, alien
have failed to comply with the conditions of any previous ad-
the determination. "
(a) Establishment of program. The Attorney General and mission as such a nonimmigrant.
jng. Any alien whose <
the Secretary of State are authorized to establish a program (8) Round-trip ticket The alien is in possession of a
mdersubparagraph(C) round-trip transportation ticket (unless this requirement is
tion in a proceeding to (hereinafter in this section referred to as the "program")
under which the requirement of paragraph (7)(B)(i)(II) of sec- waived by die Attorney General under regulations or the alien
e burden of proof shall
tion 212(a) [1182(a)] may be waived by the Attorney General, is arriving at the port of entry on an aircraft operated under
by a preponderance of
in consultation with the Secretary of State and in accordance part 135 of tide 14, Code of Federal Regulations, or a noncom-
3n described in subsec-
with this section, in the case of an alien who meets the follow- mercial aircraft that is owned or operated by a domestic corpo-
he petition are not true
ing requirements: ration conducting operations under part 91 of title 14, Code of
d enterprise.
5W. (1) Seeking entry as tourist for 90 days or less. The Federal Regulations).
alien is applying for admission during the program as a non- (9) Automated system check. The identity of die alien
tion under subsection
immigrant visitor (described in section 101(a)(15)(B)) for a has been checked using an automated electronic database con-
nation demonstrating
period not exceeding 90 days. taining information about die inadmissibility of aliens to un-
(2) National of program country. The alien is a national cover any grounds on which the alien may be inadmissible to
process of investing,
of, and presents a passport issued by, a country which— die United States, and no such ground has been found.
(A) extends (or agrees to extend), either on its own or Operators of aircraft under part 135 of title 14, Code of
n clause (i) through-
in conjunction with one or more other countries that are Federal Regulations, or operators of noncommercial aircraft
le United States; and
described in subparagraph (B) and that have established that are owned or operated by a domestic corporation con-
requirements of sec-
with it a common area for immigration admissions, reciprocal ducting operations under part 91 of title 14, Code of Federal
Regulations, carrying any alien passenger who will apply for

ipply to aliens having 209 Amended by Pub. L. No. 106-396, 114 Stat. 1637 (Oct. 30, under the amendments made by this section for simplifying the ad-
after such dale: (1) A 2000). Section 403(e) of Pub. L. No. 106-396 provides: "Report mission of business travelers from visa waiver program countries
)(I )(H)J, with respect Required. Not later than two years after the date of the enactment and compliance with the Immigration and Nationality Act by such
|. (2) A petition under of this Act, the Attorney General shall submit a report to the Com- travelers under that program."
1 remove the condi- mittees on the Judiciary of the House of Representatives and the 210 Amended by §4l7(c) and (d) of Pub. L. No. 107-56, 115
status. Senate assessing the effectiveness of the program implemented Stat. 355 (Oct. 26, 2001).
73
INA—§217 Law Handbook
admission under this section shall furnish such information regarding the country's qualification for designation that in-
as the Attorney General by regulation shall prescribe as nec- cludes an explanation of such determination.
essary for the identification of any alien passenger being (D)2'3 Reporting passport thefts. The government of the
transported and for the enforcement of the immigration laws. country certifies that it reports to the United States Government on
Such information shall be electronically transmitted not less a timely basis the theft of blank passports issued by that country.
than one hour prior to arrival at the port of entry for purposes (3) Continuing and subsequent qualifications. For each
of checking for inadmissibility using the automated elec- fiscal year after the initial period—
tronic database.211 (A) Continuing qualification. In the case of a country
(b) Waiver of rights. An alien may not be provided a which was a program country in the previous fiscal year, a coun-
waiver under the program unless the alien has waived any right try may not be designated as a program country unless the sum of
(1) to review or appeal under this Act of an immigration (i) the total of the number of nationals of that country who
officer's determination as to the admissibility of the alien at were denied admission at the time of arrival or withdrew their
the port of entry into the United States, or application for admission during such previous fiscal year as a
(2) to contest, other than on the basis of an application for nonimmigrant visitor, and
asylum, any action for removal of the alien. (ii) the total number of nationals of that country who were
(c)212 Designation of program countries. admitted as nonimmigrant visitors during such previous fiscal
(1) In general. The Attorney General, in consultation year and who violated the terms of such admission, was less
with the Secretary of State, may designate any country as a than 2 percent of the total number of nationals of that country
program country if it meets the requirements of paragraph (2). who applied for admission as nonimmigrant visitors during
(2) Qualifications. Except as provided in subsection (f), such previous fiscal year.
a country may not be designated as a program country unless (B) New countries. In the case of another country, the
the following requirements are met: country may not be designated as a program country unless
(A) Low nonimmigrant visa refusal rate. Either— the following requirements are met:
(i) the average number of refusals of nonimmigrant visi- (i) Low nonimmigrant visa refusal rate in previous
tor visas for nationals of that country during— 2-year period. The average number of refusals of nonimmigrant
(I) the two previous full fiscal years was less than 2.0 per- visitor visas for nationals of that country during the two previous
cent of the total number of non-immigrant visitor visas for na- full fiscal years was less than 2 percent of the total number of
tionals of that country which were granted or refused during nonimmigrant visitor visas for nationals of that country which
those years; and were granted or refused during those years.
(II) either of such two previous full fiscal years was less (ii) Low nonimmigrant visa refusal rate in each of the
than 2.5 percent of the total number of nonimmigrant visitor 2 previous years. The average number of refusals of nonim-
visas for nationals of that country which were granted or re- migrant visitor visas for nationals of that country during either
fused during that year, or of such two previous full fiscal years was less than 2.5 percent
(ii) such refusal rate for nationals of that country during of the total number of nonimmigrant visitor visas for nationals
the previous full fiscal year was less than 3.0 percent. of that country which were granted or refused during that year.
(B) Machine readable passport program. (4) Initial period. For purposes of paragraphs (2) and (3),
(i) In general. Subject to clause (ii), the government of the term "initial period" means the period beginning at the end
the country certifies that it issues to its citizens machine- of the 30-day period described in subsection (b)(l) and ending
readable passports that satisfy the internationally accepted on the last day of the first fiscal year which begins after such
standard for machine readability. 30-day period.
(ii) Deadline for compliance for certain countries. In (5) Written reports on continuing qualification; des-
the case of a country designated as a program country under ignation terminations.
this subsection prior to May 1,2000, as a condition on the con- (A) Periodic evaluations.
tinuation of that designation, the country— (i)215 In general. The Attorney General, in consultation
(I) shall certify, not later than October 1,2000, that it has with the Secretary of State, periodically (but not less than once
a program to issue machine-readable passports to its citizens every 2 years)—
not later than October 1,2003; and (I) shall evaluate the effect of each program country's con-
(II) shall satisfy the requirement of clause (i) not later tinued designation on the law enforcement and security inter-
than October 1,2003. ests of the United States (including the interest in enforcement
(C) Law enforcement and security interests. The At- of the immigration laws of the United States and the existence
torney General, in consultation with the Secretary of State— and effectiveness of its agreements and procedures for extradit-
(i) evaluates the effect that the country's designation would ing to the United States individuals, including its own nationals,
have on the law enforcement and security interests of the who commit crimes that violate United States law);
United States (including the interest in enforcement of the im- (II) shall determine, based upon the evaluation in sub-
migration laws of the United States and the existence and ef- clause (I), whether any such designation ought to be continued
fectiveness of its agreements and procedures for extraditing to or terminated under subsection (d); and
the United States individuals, including its own nationals, (III) shall submit a written report to the Committee on the
who commit crimes that violate United States law); Judiciary and the Committee on International Relations of the
(ii) determines that such interests would not be compro- House of Representatives and the Committee on the Judiciary
mised by the designation of the country; and and the Committee on Foreign Relations of the Senate regard-
(iii) submits a written report to the Committee on the Ju- ing the continuation or termination of the country's designa-
diciary and the Committee on International Relations of the tion that includes an explanation of such determination and
House of Representatives and the Committee on the Judiciary the effects described in subclause (I).
and the Committee on Foreign Relations of the Senate (ii) Effective date. A termination of the designation of a
country under this subparagraph shall take effect on the date

211 Final two sentences added to subsection (a) (not to (a)(9)) by "* Added by Pub. L. No. 106-396, 114 Stat. 1637 (Oct. 30,.
§403(c) of Pub. L. No. 106-396, 114 Stat. 1648 (Oct. 30, 2000). 2000).
212 Amended by §3 of Pub. L. No. 105-273, 112 Stat. 56(Apr. 27, 215 Amended by §307(a)of Pub. L. No. 107-173, 116Stat. 556
1997) and Pub. L. No. 106-396, 114 Stat. 1637 (Oct. 30,2000). (May 14, 2002).
213 Added by §307(a) of Pub. L. No. 107-173, 116 Stat. 556
(May 14, 2002).
74
,v Handbook Immigration and Nationality Act INA—§217
Jesignation that in- determined by the Attorney General, in consultation with the (7)217 Visa waiver information.
tion. Secretary of State. (A) In general. In refusing the application of nationals of
flie government of the (iii) Redesi gnat ion. In the case of a termination under a program country for United States visas, or the applications
'A States Government on this subparagraph, the Attorney General shall redesignate the of nationals of a country seeking entry into the visa waiver
> issued by that country. country as a program country, without regard to subsection (f) program, a consular officer shall not knowingly or intention-
[ualifications. For each or paragraph (2) or (3), when the Attorney General, in consul- ally classify the refusal of the visa under a category that is not
tation with the Secretary of State, determines that all causes of included in the calculation of the visa refusal rate only so that
the case of a country the termination have been eliminated. the percentage of that country's visa refusals is less than the
'ious fiscal year, a coun- (B) Emergency termination. percentage limitation applicable to qualification for participa-
auntry unless the sum of (i) In general. In the case of a program country in which an tion in the visa waiver program.
lals of that country who emergency occurs that the Attorney General, in consultation (B) Reporting requirement. On May 1 of each year, for
•rival or withdrew their with the Secretary of State, determines threatens the law en- each country under consideration for inclusion in the visa
irevious fiscal year as a forcement or security interests of the United States (includ- waiver program, the Secretary of State shall provide to the ap-
ing the interest in enforcement of the immigration laws of the propriate congressional committees
r that countrywho were United States), the Attorney General shall immediately ter- (i) the total number of nationals of that country that ap-
ng such previous fiscal minate the designation of the country as a program country. plied for United States visas in that country during the previ-
ch admission, was less (ii) Definition. For purposes of clause (i), the term "emer- ous calendar year;
ationals of that country gency" means— (ii) the total number of such nationals who received
nigrant visitors during (I) the overthrow of a democratically elected government; United States visas during the previous calendar year;
(II) war (including undeclared war, civil war, or other (iii) the total number of such nationals who were refused
if another country, the military activity) on the territory of the program country; United States visas during the previous calendar year;
rogram country unless 5 (III) a severe breakdown in law and order affecting a sig- (iv) the total number of such nationals who were refused
nificant portion of the program country's territory; United States visas during the previous calendar year under
isal rate in previous (IV) a severe economic collapse in the program country; or each provision of this Act under which the visas were refused;
:fusals of nonimmigrant (V) any other extraordinary event in the program country and
during the two previous that threatens the law enforcement or security interests of the (v) the number of such nationals that were refused under
: of the total number of United States (including the interest in enforcement of the im- section 214(b) as a percentage of the visas that were issued to
s of that country which migration laws of the United States) and where the country's such nationals.
ars. participation in the program could contribute to that threat. (C) Certification. Not later than May 1 of each year, the
sal rate in each of the (iii) Redesignation. The Attorney General may redesig- United States chief of mission, acting or permanent, to each
r of refusals of nonim- nate the country as a program country, without regard to sub- country under consideration for inclusion in the visa waiver
it country during either section (f) or paragraph (2) or (3), when the Attorney General, program shall certify to the appropriate congressional com-
as less than 2.5 percent in consultation with the Secretary of State, determines that— mittees that the information described in subparagraph (B) is
sitor visas for nationals (I) at least 6 months have elapsed since the effective date accurate and provide a copy of that certification to those
:fused during that year, of the termination; committees.
paragraphs (2) and (3), (II) the emergency that caused the termination has ended; (D) Consideration of countries in the visa waiver
od beginning at the end and program. Upon notification to the Attorney General that a
ction (b)(l) and ending (HI) the average number of refusals of non-immigrant country is under consideration for inclusion in the visa
/nich begins after such visitor visas for nationals of that country during the period of waiver program, the Secretary of State shall provide all of
termination under this subparagraph was less than 3.0 percent the information described in subparagraph (B) to the Attorney
ing qualification; des- of the total number of nonimmigrant visitor visas for nationals General.
of that country which were granted or refused during such (E) Definition. In this paragraph, the term 'appropriate
period. congressional committees' means the Committee on the Judi-
eneral, in consultation (C) Treatment of nationals after termination. For pur- ciary and the Committee on Foreign Relations of the Senate
' (but not less than once poses of this paragraph and the Committee on the Judiciary and the Committee on In-
(i) nationals of a country whose designation is terminated ternational Relations of the House of Representatives.
program country's con- under subparagraph (A) or (B) shall remain eligible for a (d) Authority. Notwithstanding any other provision of
lent and security inter- waiver under subsection (a) until the effective date of such ter- this section, Attorney General, in consultation with the Secre-
interest in enforcement mination; and tary of State, may for any reason (including national security)
States and the existence (ii) a waiver under this section that is provided to such a refrain from waiving the visa requirement in respect to nation-
procedures for extradit- national for a period described in subsection (a)(l) shall not, als of any country which may otherwise qualify for designa-
uding its own nationals, by such termination, be deemed to have been rescinded or oth- tion or may, at any time, rescind any waiver or designation
States law); erwise rendered invalid, if the waiver is granted prior to such previously granted under this section.
the evaluation in sub- termination. (e)218 Carrier agreements.
n ought to be continued (6)216 Computation of visa refusal rates. For purposes (1) In general. The agreement referred to in subsection
i of determining the eligibility of a country to be designated as a (a)(4) is an agreement between a carrier (including any carrier
3 the Committee on the program country, the calculation of visa refusal rates shall not conducting operations under part 135 of title 14, Code of Fed-
Jtional Relations of the include any visa refusals which incorporate any procedures eral Regulations) or a domestic corporation conducting opera-
mittee on the Judiciary based on, or are otherwise based on, race, sex, or disability, tions under part 91 of that title and the Attorney General under
is of the Senate regard- unless otherwise specifically authorized by law or regulation. which the carrier (including any carrier conducting operations
the country's designa- No court shall have jurisdiction under this paragraph to review under part 135 of title 14, Code of Federal Regulations) or a do-
uch determination and any visa refusal, the denial of admission to the United States mestic corporation conducting operations under part 91 of that
of any alien by the Attorney General, the Secretary's compu- title agrees, in consideration of the waiver of the visa require-
of the designation of a tation of the visa refusal rate, or the designation or nondes- ment with respect to a nonimmigrant visitor under the
take effect on the date ignation of any country. program—

14 Stat. 1637 (Oct. 30,

. 107-173, 116 Stat. 556 'Added by Pub. L. No. 106-396, 114 Stat. 1643 (Oct. 30, 1 Amended by Pub. L. No. 106-396, 114 Stat. 1648 (Oct. 30,
2000). 2000).
Added by Pub. L. No. 106-396, 114 Stat. 1644 (Oct. 30,
2000).
75
INA—§217 Law Handbook
(A) to indemnify the United States against any costs for (2) Termination of probationary status.
the transportation of the alien from the United States if the vis- (A) In general. If the Attorney General determines at the
itor is refused admission to the United States or remains in the end of the probationary period described in paragraph (1)(B)
United States unlawfully after the 90-day period described in that the program country placed in probationary status under
subsection (a)(l)(A), such paragraph has failed to develop a machine-readable pass-
(B) to submit daily to immigration officers any immigra- port program as required by section(c)(2)(C) of this section, or
tion forms received with respect to nonimmigrant visitors pro- has a disqualification rate of 2 percent or more, the Attorney
vided a waiver under the program, General shall terminate the designation of the country as a pro-
(C) to be subject to the imposition of fines resulting from gram country. If the Attorney General determines that the pro-
the transporting into the United States of a national of a desig- gram country has developed a machine-readable passport
nated country without a passport pursuant to regulations pro- program and has a disqualification rate of less than 2 percent,
mulgated by the Attorney General, and the Attorney General shall redesignate the country as a program
(D) to collect, provide, and share passenger data as re- country. ,t
quired under subsection (h)(l)(B). (B) Effective date. A termination of the designation of a
(2)219 Termination of agreements. The Attorney Gen- country under subparagraph (A) shall take effect on the first
eral may terminate an agreement under paragraph (1) with day of the first fiscal year following the fiscal year in which
five days' notice to the carrier for the failure by a carrier (in- the determination under such subparagraph is made. Until
cluding any carrier conducting operations under part 135 of such date, nationals of the country shall remain eligible for a
title 14, Code of Federal Regulations) or a domestic corpora- waiver under subsection (a).
tion conducting operations under part 91 of that title to meet (3) Nonapplicability of certain provisions. Paragraph
the terms of such agreement. (1 )(C) shall not apply unless the total number of nationals of
(3)220 Business aircraft requirements. a program country described in paragraph (4)(A) exceeds
(A) In general. For purposes of this section, a domestic 100.
corporation conducting operations under part 91 of title 14, (4) "Disqualification rate" defined. For purposes of this
Code of Federal Regulations that owns or operates a noncom- subsection, the term "disqualification rate" means the percent-
mercial aircraft is a corporation that is organized under the age which—
laws of any of the States of the United States or the District of (A) the total number of nationals of the program country
Columbia and is accredited by or a member of a national orga- who were—
nization that sets business aviation standards. The Attorney (i) excluded from admission or withdrew their applica-
General shall prescribe by regulation the provision of such in- tion for admission during the most recent fiscal year for which
formation as the Attorney General deems necessary to identify data are available; and
the domestic corporation, its officers, employees, shareholders, (ii) admitted as nonimmigrant visitors during such fiscal
its place of business, and its business activities. year and who violated the terms of such admission; bears to
(B) Collections. In addition to any other fee authorized (B) the total number of nationals of such country who ap-
by law, the Attorney General is authorized to charge and col- plied for admission as nonimmigrant visitors during such
lect, on a periodic basis, an amount from each domestic corpo- fiscal year.
ration conducting operations under part 91 of title 14, Code of (5)221 Failure to report passport thefts. If the Attorney
Federal Regulations, for nonimmigrant visa waiver admis- General and the Secretary of State jointly determine that the
sions on noncommercial aircraft owned or operated by such program country is not reporting the theft of blank passports,
domestic corporation equal to the total amount of fees as- as required by subsection (c)(2)(D), the Attorney General
sessed for issuance of non-immigrant visa waiver arrival/de- shall terminate the designation of the country as a program
parture forms at land border ports of entry. All fees collected country.
under this paragraph shall be deposited into the Immigration (g)222 Visa application sole method to dispute denial of
User Fee Account established under section 286(h). waiver based on a ground of inadmissibility. In the case of
(f) Duration and termination of designation of pro- an alien denied a waiver under the program by reason of a
gram countries. ground of inadmissibility described in section 212(a) that is
(1) In general. discovered at the time of the alien's application for the waiver
(A) Determination and notification of disqualification or through the use of an automated electronic database re-
rate. Upon determination by the Attorney General that a pro- quired under subsection (a)(9), the alien may apply for a visa
gram country's disqualification rate is 2 percent or more, the at an appropriate consular office outside the United States.
Attorney General shall notify the Secretary of State. There shall be no other means of administrative or judicial
(B) Probationary status. If the program country's dis- review of such a denial, and no court or person otherwise shall
qualification rate is greater than 2 percent but less than 3.5 per- have jurisdiction to consider any claim attacking the validity
cent, the Attorney General shall place the program country in of such a denial.
probationary status for a period not to exceed 2 full fiscal (h)223 Use of information technology systems.
years following the year in which the determination under (1) Automated entry-exit control system.
subparagraph (A) is made. (A) System. Not later than October 1,2001, the Attorney
(C) Termination of designation. Subject to paragraph General shall develop and implement a fully automated entry
(3), if the program country's disqualification rate is 3.5 per- and exit control system that will collect a record of arrival and
cent or more, the Attorney General shall terminate the coun- departure for every alien who arrives and departs by sea or air
try's designation as a program county effective at the at a port of entry into the United States and is provided a
beginning of the second fiscal year following the fiscal year in waiver under the program.
which the determination under subparagraph (A) is made. (B) Requirements. The system under subparagraph (A)
shall satisfy the following requirements:

219 Amended by Pub. L. No. 106-396, 114 Stat. 1648 (Oct. 30, 222 Amended by Pub. L. No. 106-396, 114 Stat. 1639 (Oct. 30,
2000). 2000).
220 Id. 223 Id.
221 Added by §307(a) of Pub. L. No. 107-173, 116 Stat. 556
(May 14, 2002).
76
^aw Handbook Immigration and Nationality Act INA—§218
/ status. (i) Data collection by carriers. Not later than October 1, information about each application for admission made by an
aeneral determines at the 2001, the records of arrival and departure described in sub- alien seeking a waiver under the program, including the
.scribed in paragraph (1)(B) paragraph (A) shall be based, to the maximum extent practica- following:
in probationary status under ble, on passenger data collected and electronically transmitted (I) The name or Service identification number of each im-
lop a machine-readable pass- to the automated entry and exit control system by each carrier migration officer conducting the inspection of the alien at the
>n(c)(2)(C) of this section, or that has an agreement under subsection (a)(4). port of en try.
:rcent or more, the Attorney (ii) Data provision by carriers. Not later than October 1, (II) Any information described in clause (i) that is obtained
ation of the country as a pro- 2002, no waiver may be provided under this section to an alien from the system by any such officer.
eral determines that the pro- arriving by sea or air at a port of entry into the United States on (III) The results of the application.
machine-readable passport a carrier unless the carrier is electronically transmitting to the
i rate of less than 2 percent, automated entry and exit control system passenger data deter- §218. [8 U.S.C. 1188] Admission of temporary H-2A
late the country as a program mined by the Attorney General to be sufficient to permit the workers
Attorney General to carry out this paragraph. (a) Conditions for approval Of H-2A petitions.
ition of the designation of a (iii) Calculation. The system shall contain sufficient (1) A petition to import an alien as an H-2A worker (as
hall take effect on the first data to permit the Attorney General to calculate, for each pro- defined in subsection (i)(2)) may not be approved by the At-
ng the fiscal year in which gram country and each fiscal year, the portion of nationals of torney General unless the petitioner has applied to the Secre-
^paragraph is made. Until that country who are described in subparagraph (A) and for tary of Labor for a certification that—
shall remain eligible for a whom no record of departure exists, expressed as a percentage (A) there are not sufficient workers who are able, willing,
of the total number of such nationals who are so described. and qualified, and who will be available at the time and place
lin provisions. Paragraph (C) Reporting. needed, to perform the labor or services involved in the peti-
tal number of nationals of (i) Percentage of nationals lacking departure record. tion, and
>aragraph (4)(A) exceeds J? As part of the annual report required to be submitted under (B) the employment of the alien in such labor or services
section 110(e)(l) of the Illegal Immigration Reform and Im- will not adversely affect the wages and working conditions of
fined. For purposes of this | migrant Responsibility Act of 1996, the Attorney General workers in the United States similarly employed.
>n rate" means the percent- S" shall include a section containing the calculation described in (2) The Secretary of Labor may require by regulation, as a
subparagraph (B)(iii) for each program country for the previ- condition of issuing the certification, the payment of a fee to
Is of the program country e ous fiscal year, together with an analysis of that information. recover the reasonable costs of processing applications for
(ii) System effectiveness. Not later than December 31, certification.
• withdrew their applica- £ 2004, the Attorney -General shall submit a written report to the (b) Conditions for denial of labor certification. The
;cent fiscal year for which £ Committee on the Judiciary of the United States House of Secretary of Labor may not issue a certification under subsec-
&> Representatives and of the Senate containing the following: tion (a) with respect to an employer if the conditions described
isitors during such fiscal .u (1) The conclusions of the Attorney General regarding the in that subsection are not met or if any of the following condi-
uch admission; bears to ? effectiveness of the automated entry and exit control system to tions are met:
of such country who ap- s be developed and implemented under this paragraph. (1) There is a strike or lockout in the course of a labor dis-
in t visitors during such . (II) The recommendations of the Attorney General re- pute which, under the regulations, precludes such certification.
garding the use of the calculation described in subparagraph (2)(A) The employer during the previous two-year period
rt thefts. If the Attorney (B)(iii) as a basis for evaluating whether to terminate or con- employed H-2A workers and the Secretary of Labor has deter-
rintly determine that the tinue the designation of a country as a program country. mined, after notice and opportunity for a hearing, that the em-
theft of blank passports, The report required by this clause may be combined with ployer at any time during that period substantially violated a
, the Attorney General the annual report required to be submitted on that date under material term or condition of the labor certification with re-
e country as a program section 110(e)(l) of the Illegal Immigration Reform and Im- spect to the employment of domestic or nonimmigrant workers.
migrant Responsibility Act of 1996. (B) No employer may be denied certification under sub-
lod to dispute denial of (2) Automated data sharing system.
paragraph (A) for more than three years for any violation de-
issibility. In the case of (A) System. The Attorney General and the Secretary of scribed in such subparagraph.
State shall develop and implement an automated data sharing (3) The employer has not provided the Secretary with sat-
Togram by reason of a isfactory assurances that if the employment for which the
i section 212(a) that is system that will permit them to share data in electronic form
plication for the waiver from their respective records systems regarding the admissi- certification is sought is not covered by State workers' com-
bility of aliens who are nationals of a program country. pensation law, the employer will provide, at no cost to the
electronic database re- worker, insurance covering injury and disease arising out of
in may apply for a visa (B) Requirements. The system under subparagraph (A)
shall satisfy the following requirements: and in the course of the worker's employment which will pro-
:ide the United States, vide benefits at least equal to those provided under the State
ninistrative or judicial (i) Supplying information to immigration officers con-
workers' compensation law for comparable employment.
person otherwise shall ducting inspections at ports of entry. Not later than October (4) The Secretary determines that the employer has not
> attacking the validity 1,2002, the system shall enable immigration officers conduct- made positive recruitment efforts within a multi-state region
ing inspections at ports of entry under section 235 to obtain of traditional or expected labor supply where the Secretary
>gy systems, from the system, with respect to aliens seeking a waiver under finds that there are a significant number of qualified United
system. the program— States workers who, if recruited, would be willing to make
r 1,2001, the Attorney (I) any photograph of the alien that may be contained in themselves available for work at the time and place needed.
fully automated entry the records of the Department of State or the Service; and Positive recruitment under this paragraph is in addition to, and
a record of arrival and (II) information on whether the alien has ever been deter- shall be conducted within the same time period as, the circula-
d departs by sea or air mined to be ineligible to receive a visa or ineligible to be ad- tion through the interstate employment service system of the
es and is provided a mitted to the United States. employer's job offer. The obligation to engage in positive re-
(ii) Supplying photographs of inadmissible aliens. The cruitment under this paragraph shall terminate on the date the
der subparagraph (A) system shall permit the Attorney General electronically to H-2A workers depart for the employer's place of employment.
obtain any photograph contained in the records of the Secre- (c) Special rules for consideration of applications. The
tary of State pertaining to an alien who is a national of a pro- following rules shall apply in the case of the filing and consid-
gram country and has been determined to be ineligible to eration of an application for a labor certification under this
receive a visa. section:
(iii) Maintaining records on applications for admis-
4StaL 1639 (Oct. 30,
sion. The system shall maintain, for a minimum of 10 years,

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