[Federal Register Volume 59, Number 98 (Monday, May 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12524]
[[Page Unknown]]
[Federal Register: May 23, 1994]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 211, 216, 235, and 242
[INS No. 1429-92]
RIN 1115-AC53
Conditional Permanent Resident Regulations for Alien
Entrepreneurs, Spouses, and Children
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This rule implements provisions of section 121 of the
Immigration Act of 1990, by providing for removal of conditional
resident status of certain alien entrepreneurs, their spouses, and
children. It sets forth the standards and procedures for the removal of
the conditional basis of permanent resident status through the filing
of a petition by the alien entrepreneur. This rule will allow alien
entrepreneurs to continue their commercial enterprise while providing
jobs in the United States.
EFFECTIVE DATE: May 23, 1994.
FOR FURTHER INFORMATION CONTACT:
Michael W. Straus, Senior Immigration Examiner, Adjudications Division,
Immigration and Naturalization Service, 425 I Street NW., room 7122,
Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
As part of the Immigration Act of 1990, Public Law 101-649,
November 29, 1990, Congress created the Employment Creation immigrant
visa category under section 203(b)(5) of the Immigration and
Nationality Act (Act). Section 203(b)(5) of the Act sets aside
immigrant visas for aliens seeking to enter the United States for the
purpose of engaging in a new commercial enterprise. To qualify under
this immigrant visa category, the alien must invest $1,000,000 (or
$500,000 in certain targeted areas) and create at least ten full-time
jobs. On November 29, 1991, the Immigration and Naturalization Service
(Service) issued a final regulation on implementing the provisions of
section 203(b)(5) of the Act.
Under section 121 of the Immigration Act of 1990 (section 216A of
the Act), Congress determined that aliens admitted to the United States
under the Employment Creation category as alien entrepreneurs and their
spouses and children should be admitted as conditional permanent
residents as a means to deter immigration-related entrepreneurship
fraud. Section 216A of the Act provides for a two-year conditional
resident status for alien entrepreneurs and their spouses and unmarried
children. It also provides for termination of status if the Service
determines that the qualifying commercial enterprise was improper and
sets forth the criteria and procedures for the alien entrepeneur to
remove conditional resident status.
Termination of Conditional Resident Status
Section 216A(b) of the Act calls for the termination of the alien's
conditional permanent resident status during the two-year period if the
Service determines that establishment of the commercial enterprise was
intended solely as a means to evade United States immigration laws;
that the alien did not establish the new commercial enterprise; that
the alien did not invest or was not in the process of investing the
prescribed capital; that the alien was not sustaining the new
commercial enterprise or the investment of capital; or that the alien
was not otherwise conforming to the requirements of his or her status.
In addition, in light of Congress' intent to prevent further processing
of an alien's visa if it becomes known that the alien obtained the
money invested through other than legal means, this regulation adds an
additional ground to terminate an alien entrepreneur's conditional
permanent resident status. Section 216A(b) of the Act provides that if
the Service decides to terminate the alien entrepreneur's conditional
permanent resident status, the alien shall be notified of such decision
and may request a review of the Service's determination in a
deportation proceeding. In a deportation proceeding, the Service has
the burden of proof to establish by a preponderance of the evidence
that one of the reasons for termination is true. Accordingly, 8 CFR
216.3 will be revised to allow for termination of conditional permanent
resident status for alien entrepreneurs.
Petition for Removal of Conditions
Section 216A(c)(1) and 216A(d)(2)(A) of the Act require that the
alien entrepreneur file a petition for removal of conditions during the
90-day period before the second anniversary of the alien's obtaining
conditional permanent resident status. The final regulation provides
that the alien entrepreneur file Form I-829, Petition by Entrepreneur
to Remove Conditions, with the Service Center having jurisdiction over
the location of the alien's commercial enterprise. The petition should
include the alien entrepreneur's spouse and children, even if the
children marry or reach the age of twenty-one during the period of
conditional residence. The final rule also permits the spouse and
children of a deceased principal alien entrepreneur to file a petition
and have conditions removed, if the spouse and/or children can show
that, despite the entrepreneur's death, the requirements for removal of
conditions have been met.
Under the final regulation, the Service Center will review the
petition for removal of conditions. If the Service Center director
determines in his or her discretion that a decision may be made on the
basis of the petition and accompanying evidence without the necessity
of an interview, the director will render a decision on the petition.
If the director determines that an interview is needed, the Service
Center director will schedule the alien entrepreneur for an interview
at a local Service district office or sub-office having jurisdiction
over the alien's commercial enterprise. The district director will then
render a decision on the petition.
If the alien entrepreneur fails to file a timely petition for
removal of conditions or, without good cause shown, fails to appear for
a scheduled personal interview, the alien's status will be terminated
and an order to show cause will be issued. The Service's decision may
be reviewed in deportation proceedings, but, in all instances, the
burden will rest with the alien to show compliance with the filing and
interview requirements. The Service may accept and consider a late
petition if the alien demonstrates good cause and extenuating
circumstances for failing to file a timely petition.
Decision on Petition
Section 216A(d)(1) of the Act provides that each petition shall
contain facts and information demonstrating that a commercial
enterprise was established by the alien, the alien invested or was
actively in the process of investing the requisite capital, and the
alien sustained the commercial enterprise and the investment of the
required capital during the two years of conditional residence. Under 8
CFR 216.6(a)(4)(iii), the alien entrepreneur will be considered to have
``sustained'' the actions required for removal of conditions if he or
she has, in good faith, substantially met the capital investment
requirement of the statute and continuously maintained his or her
capital investment over the two years of conditional residence. This
liberal interpretation of the term ``sustained'' permits the Service
maximum flexibility in determining whether the requirements for removal
of conditional resident status have been met, as well as following
Congress' intent to ensure that ``all aliens receiving visas in this
section * * * continue their new commercial enterprises so that the
creation of U.S. jobs and the infusion of capital into the U.S. economy
is sustained.'' See S. Rep. No. 101-55, 101st Cong., 1st Sess. 22
(1989). The Service recognizes that a bona-fide and good faith
investment may not, by the end of the two-year period, meet all the
expectations envisioned when the alien entrepreneur obtained
conditional resident status. The determination of whether the alien
entrepreneur has invested a substantial portion of the requisite
capital in good faith will be made on a case-by-case basis. As
discussed in the preamble to the proposed rule, in determining whether
the alien entrepreneur has demonstrated that he or she invested the
requisite capital in good faith, the Service will examine his or her
intent based on both objective and subjective standards. See 59 FR
1317-18. The alien entrepreneur has the burden of proof that he or she
has, in good faith, substantially met the capital investment
requirement of the statute and continuously maintained his or her
capital investment during the two-year conditional resident period.
On January 10, 1994, at 59 FR 1317-1323, the Service published a
proposed rule with request for comments in the Federal Register.
Interested persons were invited to submit written comments on or before
February 9, 1994. The Service received three comments relating to the
proposed rule.
Comments
Two commenters criticized the proposed regulation for lacking any
time limits for the Service to adjudicate a petition for removal of
conditions. One commenter suggested that if the Service takes no action
on a petition, the petition should be automatically granted after a set
period of time.
Section 216A(c)(3) of the Act provides that the Attorney General
make a determination on a petition to remove conditions within 90 days
of the date the petition is filed or within 90 days of the interview,
whichever is later. Accordingly, 8 CFR 216.6(b)(1) of the proposed
regulation states that the Service Center director must either waive
the interview requirement and adjudicate the petition or arrange for an
interview within 90 days of the date the alien entrepreneur filed the
petition. This regulation is, of course, subject to the provisions of 8
CFR 103.2(b)(10)(i). 8 CFR 216.6(c)(1) provides that a decision on a
petition shall be made within 90 days of the date of filing or within
90 days of the date of interview, whichever is later. The above
provisions in the proposed regulation adequately address the
commenters' concerns as well as meet the adjudication time line set
forth in section 216A(c)(3) of the Act.
There is no provision in section 216A requiring the Service to
approve a petition if the Service fails to adjudicate a petition within
90 days after filing or after an interview. Section 216A(c)(3) of the
Act states that the Service must make a determination whether the facts
and information described in the contents of the petition are true.
Requiring the Service to ``automatically'' approve a petition after the
90-day period has elapsed would be contrary to the language of section
216A(c)(3) of the Act.
Two of the commenters suggested that the Service list additional
types of evidence in 8 CFR 216.6(a)(4)(ii) to show that the alien
invested or was actively in the process of investing the requisite
capital. This regulation states that such evidence may include, but is
not limited to, an audited financial statement. The commenters
contended that although an audited financial statement is only a
suggested document, it might set too high a standard in the mind of a
Service examiner. They suggested other types of evidence such as bank
statements or certificates from certified public accountants or
officers of the investment entity.
As clearly stated in the regulation, an audited financial statement
is only a suggested type of evidence. There is no basis for the
contention that mentioning an audited financial statement in the
regulation would set too high a standard. The Service recognizes that
it is not common practice for all companies to have audited financial
statements. The regulation will be amended to include ``other probative
evidence'' indicating establishment of a commercial enterprise. The
Service notes that it is possible that the evidence necessary to meet
the documentation requirements of 8 CFR 216.6(a)(4)(iii), such as bank
statements, would be sufficient to meet the evidence required under 8
CFR 216.6(a)(4)(i) and (ii). Accordingly, 8 CFR 216.6(a)(4)(ii) will be
amended to also include ``other probative evidence'' that a commercial
enterprise has been established.
Two of the commenters were concerned that proposed 8 CFR
216.6(a)(4)(iii) requires that the alien entrepreneur make the full
capital investment in cash within the two-year conditional residence
period. They argued that the wording of the proposed regulation should
specifically cover situations where only a portion of the capital in
the form of cash has been invested, with the remainder of the capital
to be invested by the commercial enterprise. The proposed regulation
refers to substantially meeting and maintaining the alien
entrepreneur's capital investment. See 8 CFR 216.6(a)(4)(iii). As noted
previously in this preamble, the regulation contemplates certain
limited circumstances in which the entire amount of the requisite
capital has not been invested by the end of the two-year period.
Further, the word capital refers not only to a cash investment, but
also to other types of investments which meet the definition of capital
found in 8 CFR 204.6(e). The proposed regulation is sufficiently
flexible to permit situations in which the requisite capital invested
is in a form other than cash. For these reasons, the proposed rule,
therefore, will not be amended.
One commenter contended that the Service should state in the
regulations that a good faith commitment on a debt agreement, which is
secured by the alien entrepreneur's assets, should suffice to meet the
requirement that the alien entrepreneur has, in good faith,
substantially met the capital investment requirement of the statute and
continuously maintained the investment. Under the statute, changing the
wording of the regulation to include a good faith commitment is not
warranted. Section 216A(d)(1) of the Act requires that the alien
entrepreneur invested or was actively in the process of investing the
requisite capital and sustained those actions during the two-year
conditional residence period. The language of section 216A(d)(1)(B) of
the Act uses the past, rather than the present, tense in requesting
information showing that the alien entrepreneur invested or was
actively in the process of investing the requisite capital. While there
is no statutory requirement with respect to when the requisite capital
must have been invested during the two-year period, it is clear that,
by using the past tense, Congress expressed its intent that
substantially all of the requisite capital be invested by the alien
entrepreneur before the expiration of conditional resident status.
Accordingly, the Service will not adopt the commenter's suggestion.
Two commenters recommended that the divorced spouse of the
principal entrepreneur be entitled to have his or her conditional
resident status removed. One of those commenters also suggested that
children who reach the age of 21 or marry during the conditional
residence period should be able to have their conditional resident
status removed. Section 216.6(a)(1) of the proposed regulation clearly
states that children who marry or reach the age of 21 during the
conditional residence period can be included in the principal alien
entrepreneur's petition to remove the conditions. The Service has
carefully considered the commenters' suggestion that divorced spouses
of alien entrepreneurs should also be allowed to remove their
conditional residence status. The Service agrees with the commenters
that divorced spouses of alien entrepreneurs should be able to remove
their conditional resident status as long as the divorce occurred
during the conditional residence period. Accordingly, section
216.6(a)(1) of the final regulation will allow divorced spouses of
alien entrepreneurs to remove their conditional resident status. The
children and the present or former spouse of the alien entrepreneur may
be included in the entrepreneur's petition to remove the conditions or
they may file a separate petition to remove conditions. They are
eligible to have their conditional resident status removed only if the
Service removes the alien entrepreneur's conditional resident status.
Two commenters urged the Service to state in the regulations that
the legality of the source of the alien entrepreneur's funds should be
determined by U.S., rather than foreign standards. The commenters are
concerned that aliens would be precluded from applying lawfully
acquired funds which were taken out of a country in violation of its
export currency laws and placed in a new commercial enterprise in the
United States as qualifying capital. The only provision in the proposed
regulations concerning source of capital is 8 CFR 216.3(a), which
states that the Service shall terminate the alien entrepreneur's status
if it becomes known to the government that the alien obtained his or
her capital through other legal means (such as through the sale of
illegal drugs). When the alien files Form I-526, Immigrant Petition by
Alien Entrepreneur, he or she must show that the capital invested was
obtained through lawful means. See 8 CFR 204.6(j)(3). The commenters'
suggestion is more appropriately addressed to 8 CFR 204.6(j)(2)(ii),
which addresses this issue in more detail. The Service notes, however,
that without more specific information about the particular country's
currency restriction laws, it is difficult to determine whether
capital, in a given case, was obtained through other than lawful means.
Each petition must be adjudicated on a case-by-case basis. Accordingly,
the Service does not feel that it is appropriate to amend this
regulation.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and by approving it certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule is intended to allow alien entrepreneurs to
continue their commercial enterprises thereby providing jobs in the
United States. This rule merely sets forth the procedures for
terminating the conditional resident status of alien entrepreneurs
already present in the country and for removing the conditional basis
of permanent resident status for such persons. This rule, therefore,
will have, at most, an indirect and attenuated effect on such business
entities.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 6(a)(3)(A).
Executive Order 12612
The regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
assessment.
Executive Order 12606
The Commissioner of the Immigration and Naturalization Service
certifies that she has addressed this rule in light of the criteria in
Executive Order 12606 and has determined that it will have no effect on
family well-being.
This rule contains information collection requirements which have
been approved by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act. The OMB control numbers for
these collections are contained in 8 CFR 299.5. The OMB control number
for the Form I-829 is 1115-0190.
List of Subjects
8 CFR Part 103
Administrative practice and procedures, Archives and records,
Authority delegations (Government agencies), Bonding, Fees, Forms,
Freedom of Information, Organization and functions (Government
agencies, Privacy, Reporting and recordkeeping requirements, Surety
bonds.
8 CFR Part 211
Immigration, Passports and visas, Reporting and recordkeeping
requirements.
8 CFR Part 216
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 242
Administrative practice and procedure, Aliens.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
2. In Sec. 103.7, paragraph (b)(1) is amended by:
a. Removing the ``Form I-752'' from the listing forms;
b. Revising the description for ``Form I-751''; and by
c. Adding the ``Form I-829'', to the listing of forms, in proper
numerical sequence, to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-751. For filing petition to remove the conditions on
residence which is based on marriage--$75.00.
* * * * *
Form I-829. For filing petition by entrepreneur to remove
conditions--$90.00.
* * * * *
PART 211--DOCUMENTARY REQUIREMENTS; IMMIGRANTS; WAIVERS
3. The authority citation for part 211 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257.
4. In Sec. 211.1, paragraph (b)(1)(i) introductory text is revised
to read as follows:
Sec. 211.1 Visas.
* * * * *
(b)(1) * * *
(i) Alien not travelling pursuant to government orders. An Alien
Registration Receipt Card may be presented in lieu of an immigrant visa
by an immigrant alien who is returning to an unrelinquished lawful
permanent residence in the United States, is returning prior to the
second anniversary of the date on which he or she obtained such
residence if subject to the provisions of section 216 or 216A of the
Act, whichever is applicable, or within six months of the date of
filing a Petition to Remove the Conditions on Residence (Form I-751) or
a Petition by Entrepreneur to Remove Conditions (Form I-829) pursuant
to 8 CFR part 216, if the alien is in possession of a Service-issued
receipt for such filing, and:
* * * * *
PART 216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS
5. The heading for part 216 is revised as set forth above.
6. The authority citation for part 216 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8
CFR part 2.
Sec. 216.1 [Amended]
7. Section 216.1 is amended in the first sentence by revising the
phrase ``section 216 of the Act'' to read: ``section 216 or 216A of the
Act, whichever is applicable,''.
Sec. 216.2 [Amended]
8. Section 216.2(b) is amended in the first sentence by adding the
phrase ``or the alien entrepreneur'' between the words ``spouse'' and
``must''.
9. Section 216.2(c) is amended by adding the phrase ``, or the
alien entrepreneur'' between the words ``spouse'' and ``of''; and by
removing the word ``joint''.
10. Section 216.3 is revised to read as follows:
Sec. 216.3 Termination of conditional resident status.
(a) During the two-year conditional period. The director shall send
a formal written notice to the conditional permanent resident of the
termination of the alien's conditional permanent resident status if the
director determines that any of the conditions set forth in section
216(b)(1) or 216A(b)(1) of the Act, whichever is applicable, are true,
or it becomes known to the government that an alien entrepreneur who
was admitted pursuant to section 203(b)(5) of the Act obtained his or
her investment capital through other than legal means (such as through
the sale of illegal drugs). If the Service issues a Notice of Intent to
Terminate an alien's conditional resident status, the director shall
not adjudicate Form I-751 or Form I-829 until it has been determined
that the alien's status shall not be terminated. During this time, the
alien shall continue to be a lawful conditional permanent resident with
all the rights, privileges, and responsibilities provided to persons
possessing such status. Prior to issuing the Notice of Termination, the
director shall provide the alien with an opportunity to review and
rebut the evidence upon which the decision is to be based, in
accordance with Sec. 103.2(b)(2) of this chapter. The termination of
status, and all of the rights and privileges concomitant thereto
(including authorization to accept or continue in employment in this
country), shall take effect as of the date of such determination by the
director, although the alien may request a review of such determination
in deportation proceedings. In addition to the notice of termination,
the director shall issue an order to show cause why the alien should
not be deported from the United States, in accordance with part 242 of
this chapter. During the ensuing deportation proceedings, the alien may
submit evidence to rebut the determination of the director. The burden
of proof shall be on the Service to establish, by a preponderance of
the evidence, that one or more of the conditions in section 216(b)(1)
or 216A(b)(1) of the Act, whichever is applicable, are true, or that an
alien entrepreneur who was admitted pursuant to section 203(b)(5) of
the Act obtained his or her investment capital through other than legal
means (such as through the sale of illegal drugs).
(b) Determination of fraud after two years. If, subsequent to the
removal of the conditional basis of an alien's permanent resident
status, the director determines that an alien spouse obtained permanent
resident status through a marriage which was entered into for the
purpose of evading the immigration laws or an alien entrepreneur
obtained permanent resident status through a commercial enterprise
which was improper under section 216A(b)(1) of the Act, the director
may institute rescission proceedings pursuant to section 246 of the Act
(if otherwise appropriate) or deportation proceedings under section 242
of the Act.
11. In Sec. 216.4, paragraph (a)(1) is amended by revising the
phrase ``a Joint Petition to Remove the Conditional Basis of Alien's
Permanent Resident Status'' in the first sentence, to read: ``a
Petition to Remove the Conditions on Residence''.
12. In Sec. 216.4, the heading is revised and paragraph (a)(1) is
amended by adding a new sentence at the end of the paragraph to read as
follows:
Sec. 216.4 Joint petition to remove conditional basis of lawful
permanent resident status for alien spouse.
(a) * * *
(1) General procedures. * * * Upon receipt of a properly filed Form
I-751, the alien's conditional permanent resident status shall be
extended automatically, if necessary, until such time as the director
has adjudicated the petition.
* * * * *
13. In Sec. 216.4, paragraph (a)(2) is amended in the last
sentence, by revising the phrase ``an Application for Waiver of
Requirement to File Joint Petition for Removal of Conditions (Form I-
752)'' to read: ``a separate Petition to Remove the Conditions on
Residence (Form I-751)''.
14. In Sec. 216.4, paragraph (a)(6) is amended in the first
sentence by removing the phrase ``or Form I-752''.
15. In Sec. 216.5, the section heading and paragraph (a),
introductory text, are revised to read as follows:
Sec. 216.5 Waiver of requirement to file joint petition to remove
conditions by alien spouse.
(a) General. A conditional resident alien who is unable to meet the
requirements under section 216 of the Act for a joint petition for
removal of the conditional basis of his or her permanent resident
status may file a Petition to Remove the Conditions on Residence (Form
I-751), if the alien requests a waiver, was not at fault in failing to
meet the filing requirement, and the conditional resident alien is able
to establish that:
* * * * *
Sec. 216.5 [Amended]
16. In Sec. 216.5, paragraphs (b) and (c) are amended by revising
the phrase ``Form I-752'' to read: ``Form I-751''.
17. A new Sec. 216.6 is added to read as follows:
Sec. 216.6 Petition by entrepreneur to remove conditional basis of
lawful permanent resident status.
(a) Filing the petition--(1) General procedures. A petition to
remove the conditional basis of the permanent resident status of an
alien accorded conditional permanent residence pursuant to section
203(b)(5) of the Act must be filed by the alien entrepreneur on Form I-
829, Petition by Entrepreneur to Remove Conditions. The alien
entrepreneur must file Form I-829 within the 90-day period preceding
the second anniversary of his or her admission to the United States as
a conditional permanent resident. Before Form I-829 may be considered
as properly filed, it must be accompanied by the fee required under
Sec. 103.7(b)(1) of this chapter, and by documentation as described in
paragraph (a)(4) of this section, and it must be properly signed by the
alien. Upon receipt of a properly filed Form I-829, the alien's
conditional permanent resident status shall be extended automatically,
if necessary, until such time as the director has adjudicated the
petition. The entrepreneur's spouse and children should be included in
the petition to remove conditions. Children who have reached the age of
twenty-one or who have married during the period of conditional
permanent residence and the former spouse of an entrepreneur, who was
divorced from the entrepreneur during the period of conditional
permanent residence, may be included in the alien entrepreneur's
petition or may file a separate petition.
(2) Jurisdiction. Form I-829 must be filed with the regional
service center having jurisdiction over the location of the alien
entrepreneur's commercial enterprise in the United States.
(3) Physical presence at time of filing. A petition may be filed
regardless of whether the alien is physically present in the United
States. However, if the alien is outside the United States at the time
of filing, he or she must return to the United States, with his or her
spouse and children, if necessary, to comply with the interview
requirements contained in the Act. Once the petition has been properly
filed, the alien may travel outside the United States and return if in
possession of documentation as set forth in Sec. 211.1(b)(1) of this
chapter, provided the alien complies with the interview requirements
described in paragraph (b) of this section. An alien who is not
physically present in the United States during the filing period but
subsequently applies for admission to the United States shall be
processed in accordance with Sec. 235.11 of this chapter.
(4) Documentation. The petition for removal of conditions must be
accompanied by the following evidence:
(i) Evidence that a commercial enterprise was established by the
alien. Such evidence may include, but is not limited to, Federal income
tax returns;
(ii) Evidence that the alien invested or was actively in the
process of investing the requisite capital. Such evidence may include,
but is not limited to, an audited financial statement or other
probative evidence; and
(iii) Evidence that the alien sustained the actions described in
paragraph (a)(4)(i) and (a)(4)(ii) of this section throughout the
period of the alien's residence in the United States. The alien will be
considered to have sustained the actions required for removal of
conditions if he or she has, in good faith, substantially met the
capital investment requirement of the statute and continuously
maintained his or her capital investment over the two years of
conditional residence. Such evidence may include, but is not limited
to, bank statements, invoices, receipts, contracts, business licenses,
Federal or State income tax returns, and Federal or State quarterly tax
statements.
(iv) Evidence that the alien created or can be expected to create
within a reasonable time ten full-time jobs for qualifying employees.
In the case of a ``troubled business'' as defined in 8 CFR
204.6(j)(4)(ii), the alien entrepreneur must submit evidence that the
commercial enterprise maintained the number of existing employees at no
less than the pre-investment level for the period following his or her
admission as a conditional permanent resident. Such evidence may
include payroll records, relevant tax documents, and Forms I-9.
(5) Termination of status for failure to file petition. Failure to
properly file Form I-829 within the 90-day period immediately preceding
the second anniversary of the date on which the alien obtained lawful
permanent residence on a conditional basis shall result in the
automatic termination of the alien's permanent resident status and the
initiation of deportation proceedings. The director shall send a
written notice of termination and an order to show cause to an alien
entrepreneur who fails to timely file a petition for removal of
conditions. No appeal shall lie from this decision; however, the alien
may request a review of the determination during deportation
proceedings. In deportation proceedings, the burden of proof shall rest
with the alien to show by a preponderance of the evidence that he or
she complied with the requirement to file the petition within the
designated period. The director may deem the petition to have been
filed prior to the second anniversary of the alien's obtaining
conditional permanent resident status and accept and consider a late
petition if the alien demonstrates to the director's satisfaction that
failure to file a timely petition was for good cause and due to
extenuating circumstances. If the late petition is filed prior to
jurisdiction vesting with the immigration judge in deportation
proceedings and the director excuses the late filing and approves the
petition, he or she shall restore the alien's permanent resident
status, remove the conditional basis of such status, and cancel any
outstanding order to show cause in accordance with Sec. 242.7 of this
chapter. If the petition is not filed until after jurisdiction vests
with the immigration judge, the immigration judge may terminate the
matter upon joint motion by the alien and the Service.
(6) Death of entrepreneur and effect on spouse and children. If an
entrepreneur dies during the prescribed two-year period of conditional
permanent residence, the spouse and children of the entrepreneur will
be eligible for removal of conditions if it can be demonstrated that
the conditions set forth in paragraph (a)(4) of this section have been
met.
(b) Petition review--(1) Authority to waive interview. The director
of the service center shall review the Form I-829 and the supporting
documents to determine whether to waive the interview required by the
Act. If satisfied that the requirements set forth in paragraph (c)(1)
of this section have been met, the service center director may waive
the interview and approve the petition. If not so satisfied, then the
service center director shall forward the petition to the district
director having jurisdiction over the location of the alien
entrepreneur's commercial enterprise in the United States so that an
interview of the alien entrepreneur may be conducted. The director must
either waive the requirement for an interview and adjudicate the
petition or arrange for an interview within 90 days of the date on
which the petition was properly filed.
(2) Location of interview. Unless waived, an interview relating to
the Form I-829 shall be conducted by an immigration examiner or other
officer so designated by the district director at the district office
that has jurisdiction over the location of the alien entrepreneur's
commercial enterprise in the United States.
(3) Termination of status for failure to appear for interview. If
the alien fails to appear for an interview in connection with the
petition when requested by the Service, the alien's permanent resident
status will be automatically terminated as of the second anniversary of
the date on which the alien obtained permanent residence. The alien
will be provided with written notification of the termination and the
reasons therefore, and an order to show cause shall be issued placing
the alien under deportation proceedings. The alien may seek review of
the decision to terminate his or her status in such proceedings, but
the burden shall be on the alien to establish by a preponderance of the
evidence that he or she complied with the interview requirements. If
the alien has failed to appear for a scheduled interview, he or she may
submit a written request to the district director asking that the
interview be rescheduled or that the interview be waived. That request
should explain his or her failure to appear for the scheduled
interview, and if a request for waiver of the interview, the reasons
such waiver should be granted. If the district director determines that
there is good cause for granting the request, the interview may be
rescheduled or waived, as appropriate. If the district director waives
the interview, he or she shall restore the alien's conditional
permanent resident status, cancel any outstanding order to show cause
in accordance with Sec. 242.7 of this chapter, and proceed to
adjudicate the alien's petition. If the district director reschedules
that alien's interview, he or she shall restore the alien's conditional
permanent resident status, and cancel any outstanding order to show
cause in accordance with Sec. 242.7 of this chapter. If the interview
is rescheduled at the request of the alien, the Service shall not be
required to conduct the interview within the 90-day period following
the filing of the petition.
(c) Adjudication of petition. (1) The decision on the petition
shall be made within 90 days of the date of filing or within 90 days of
the interview, whichever is later. In adjudicating the petition, the
director shall determine whether:
(i) A commercial enterprise was established by the alien;
(ii) The alien invested or was actively in the process of investing
the requisite capital; and
(iii) The alien sustained the actions described in paragraphs
(c)(1)(i) and (c)(1)(ii) of this section throughout the period of the
alien's residence in the United States. The alien will be considered to
have sustained the actions required for removal of conditions if he or
she has, in good faith, substantially met the capital investment
requirement of the statute and continuously maintained his or her
capital investment over the two years of conditional residence.
(iv) The alien created or can be expected to create within a
reasonable period of time ten full-time jobs to qualifying employees.
In the case of a ``troubled business'' as defined in 8 CFR
204.6(j)(4)(ii), the alien maintained the number of existing employees
at no less than the pre-investment level for the previous two years.
(2) If derogatory information is determined regarding any of these
issues or it becomes known to the government that the entrepreneur
obtained his or her investment funds through other than legal means
(such as through the sale of illegal drugs), the director shall offer
the alien entrepreneur the opportunity to rebut such information. If
the alien entrepreneur fails to overcome such derogatory information or
evidence the investment funds were obtained through other than legal
means, the director may deny the petition, terminate the alien's
permanent resident status, and issue an order to show cause. If
derogatory information not relating to any of these issues is
determined during the course of the interview, such information shall
be forwarded to the investigations unit for appropriate action. If no
unresolved derogatory information is determined relating to these
issues, the petition shall be approved and the conditional basis of the
alien's permanent resident status removed, regardless of any action
taken or contemplated regarding other possible grounds for deportation.
(d) Decision--(1) Approval. If, after initial review or after the
interview, the director approves the petition, he or she will remove
the conditional basis of the alien's permanent resident status as of
the second anniversary of the alien's entry as a conditional permanent
resident. He or she shall provide written notice of the decision to the
alien and shall require the alien to report to the appropriate district
office for processing for a new Alien Registration Receipt Card, Form
I-551, at which time the alien shall surrender any Alien Registration
Receipt Card previously issued.
(2) Denial. If, after initial review or after the interview, the
director denies the petition, he or she shall provide written notice to
the alien of the decision and the reason(s) therefor, and shall issue
an order to show cause why the alien should not be deported from the
United States. The alien's lawful permanent resident status and that of
his or her spouse and any children shall be terminated as of the date
of the director's written decision. The alien shall also be instructed
to surrender any Alien Registration Receipt Card previously issued by
the Service. No appeal shall lie from this decision; however, the alien
may seek review of the decision in deportation proceedings. In
deportation proceedings, the burden shall rest with the Service to
establish by a preponderance of the evidence that the facts and
information in the alien's petition for removal of conditions are not
true and that the petition was properly denied.
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
18. The authority citation for part 235 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225,
1226, 1227, 1228, 1252.
19. In Sec. 235.11, paragraphs (a) and (c) are revised to read as
follows:
Sec. 235.11 Admission of conditional permanent residents.
(a) General--(1) Conditional residence based on family
relationship. An alien seeking admission to the United States with an
immigrant visa as the spouse or son or daughter of a United States
citizen or lawful permanent resident shall be examined to determine
whether the conditions of section 216 of the Act apply.
If so, the alien shall be admitted conditionally for a period of
two years. At the time of admission, the alien shall be notified that
the alien and his or her petitioning spouse must file a Petition to
Remove the Conditions on Residence (Form I-751) within the 90-day
period immediately preceding the second anniversary of the alien's
admission for permanent residence.
(2) Conditional residence based on entrepreneurship. An alien
seeking admission to the United States with an immigrant visa as an
alien entrepreneur (as defined in section 216A(f)(1) of the Act) or the
spouse or unmarried minor child of an alien entrepreneur shall be
admitted conditionally for a period of two years. At the time of
admission, the alien shall be notified that the principal alien
(entrepreneur) must file a Petition by Entrepreneur to Remove
Conditions (Form I-829) within the 90-day period immediately preceding
the second anniversary of the alien's admission for permanent
residence.
* * * * *
(c) Expired conditional permanent resident status. The lawful
permanent resident alien status of a conditional resident automatically
terminates if the conditional basis of such status is not removed by
the Service through approval of a Petition to Remove the Conditions on
Residence (Form I-751) or, in the case of an alien entrepreneur (as
defined in section 216A(f)(1) of the Act), a Petition by Entrepreneur
to Remove Conditions (Form I-829). Therefore, an alien who is seeking
admission as a returning resident subsequent to the second anniversary
of the date on which conditional residence was obtained (except as
provided in Sec. 211.1(b)(1) of this chapter) and whose conditional
basis of such residence has not been removed pursuant to section 216(c)
or 216A(c) of the Act, whichever is applicable, shall be placed under
exclusion proceedings. However, in a case where conditional residence
was based on a marriage, exclusion proceedings may be terminated and
the alien may be admitted as a returning resident if the required
petition (Form I-751) is filed jointly, or by the alien alone (if
appropriate), and approved by the Service. In the case of an alien
entrepreneur, exclusion proceedings may be terminated and the alien
admitted as a returning resident if the required petition (Form I-829)
is filed by the alien entrepreneur and approved by the Service.
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES, APPREHENSION, CUSTODY, HEARING AND APPEAL
20. The authority citation for part 242 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,
1252b, 1254, 1362; 8 CFR part 2.
21. In Sec. 242.17 paragraph (a) is revised to read as follows:
Sec. 242.17 Ancillary matters, applications.
(a) Creation of the status of an alien lawfully admitted for
permanent residence. The respondent may apply to the immigration judge
for suspension of deportation under section 244(a) of the Act; for
adjustment of status under section 245 of the Act, or under section 1
of the Act of November 2, 1966, or under section 101 or 104 of the Act
of October 28, 1977; or for the creation of a record of lawful
admission for permanent residence under section 249 of the Act. The
application shall be subject to the requirements of parts 244, 245, and
249 of this chapter. The approval of any application made to the
immigration judge under section 245 of the Act by an alien spouse (as
defined in section 216(g)(1) of the Act) or by an alien entrepreneur
(as defined in section 216A(f)(1) of the Act), shall result in the
alien's obtaining the status of lawful permanent resident on a
conditional basis in accordance with the provisions of section 216 or
216A of the Act, whichever is applicable. However, the Petition to
Remove the Conditions on Residence required by section 216(c) of the
Act or the Petition by Entrepreneur to Remove Conditions required by
section 216A(c) of the Act shall be made to the director in accordance
with part 216 of the chapter. In conjunction with any application for
creation of status of an alien lawfully admitted for permanent
residence made to an immigration judge, if the respondent is
inadmissible under any provision of section 212(a) of the Act and
believes that he or she meets the eligibility requirements for a waiver
of the ground of inadmissibility, he or she may apply to the
immigration judge for such waiver. The immigration judge shall inform
the respondent of his or her apparent eligibility to apply for any of
the benefits enumerated in this paragraph and shall afford the
respondent an opportunity to make application therefor during the
hearing. In exercising discretionary power when considering an
application under this paragraph, the immigration judge may consider
and base the decision on information not contained in the record and
not made available for inspection by the respondent, provided the
Commissioner has determined that such information is relevant and is
classified under Executive Order No. 12356 (47 FR 14874, April 6, 1982)
as requiring protection from unauthorized disclosure in the interest of
national security. Whenever the immigration judge believes that he or
she can do so while safeguarding both the information and its source,
the immigration judge should inform the respondent of the general
nature of the information in order that the respondent may have an
opportunity to offer opposing evidence. A decision based in whole or in
part on such classified information shall state that the information is
material to the decision.
* * * * *
Dated: April 21, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-12524 Filed 5-20-94; 8:45 am]
BILLING CODE 4410-10-M
