Imágenes de páginas
PDF
EPUB

date on which an application under this paragraph is filed, at the employer's principal place of business or worksite, a copy of each such application (and such accompanying documents as are necessary). The Secretary shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under this subsection. Such list shall include the wage rate, number of aliens sought, period of intended employment, and date of need. The Secretary shall make such list available for public examination in Washington, D.C. The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide the certification described in section 1101(a)(15)(H)(i)(b) of this title within 7 days of the date of the filing of the application.

(2)(A) The Secretary shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's failure to meet a condition specified in an application submitted under paragraph (1) or a petitioner's misrepresentation of material facts in such an application. Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively. The Secretary shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.

(B) Under such process, the Secretary shall provide, within 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C). If the Secretary determines that such a reasonable basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, within 60 days after the date of the determination. If such a hearing is requested, the Secretary shall make a finding concerning the matter by not later than 60 days after the date of the hearing. In the case of similar complaints respecting the same applicant, the Secretary may consolidate the hearings under this subparagraph on such complaints.

(C) If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(B), a substantial failure to meet a condition of paragraphs (1)(C) or (1)(D), a willful failure to meet a condition of paragraph (1)(A), or a misrepresentation of material fact in an application

(i) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate, and

(ii) the Attorney General shall not approve petitions filed with respect to that employer

under section 1154 or 1184(c) of this title during a period of at least 1 year for aliens to be employed by the employer.

(D) If the Secretary finds, after notice and opportunity for a hearing, that an employer has not paid wages at the wage level specified under the application and required under paragraph (1), the Secretary shall order the employer to provide for payment of such amounts of back pay as may be required to comply with the requirements of paragraph (1), whether or not a penalty under subparagraph (C) has been imposed.

(As amended Dec. 18, 1989, Pub. L. 101-238, § 3(b), 103 Stat. 2100; Feb. 16, 1990, Pub. L. 101-246, title I, § 131(a), (c), 104 Stat. 31; Nov. 29, 1990, Pub. L. 101-649, title I, § 162(e)(1), (f)(2)(B), title II, §§ 202(b), 205(c)(3), title V, §§ 511(a), 514(a), title VI, § 601(a), (b), (d), 104 Stat. 5011, 5012, 5014, 5020, 5052, 5053, 5067, 5075; Dec. 12, 1991, Pub. L. 102-232, title III, §§ 302(e)(6), (9), 303(a)(5)(B), (6), (7)(B), 306(a)(10), (12), 307(a)–(g), 309(b)(7), 105 Stat. 1746, 1747, 1751, 1753-1755, 1759; June 10, 1993, Pub. L. 103-43, title XX, § 2007(a), 107 Stat. 210.)

REFERENCES IN TEXT

Section 301 of the Immigration Act of 1990, referred to in subsec. (a)(6)(E)(ii), is section 301 of Pub. L. 101-649, which is set out as a note under section 1255a of this title.

Section 112 of the Immigration Act of 1990, referred to in subsec. (a)(6)(E)(ii), is section 112 of Pub. L. 101-649, which is set out as a note under section 1153 of this title.

AMENDMENTS

1993-Subsec. (a)(1)(A)(i). Pub. L. 103-43 inserted at end "which shall include infection with the etiologic agent for acquired immune deficiency syndrome,".

1991-Subsec. (a)(1)(A)(ii)(II). Pub. L. 102-232, § 307(a)(1), inserted "or" at end.

Subsec. (a)(3)(A)(i). Pub. L. 102-232, § 307(a)(2), inserted "(I)" after "any activity" and "(II)” after “sabotage or".

Subsec.

(a)(3)(B)(iii)(III). Pub. L. 102-232, § 307(a)(3), substituted "a terrorist activity" for "an act of terrorist activity".

Subsec. (a)(3)(C)(iv). Pub. L. 102-232, § 307(a)(5), substituted "identity" for "identities".

Subsec. (a)(3)(D)(iv). Pub. L. 102-232, § 307(a)(4), substituted "if the immigrant” for “if the alien".

Subsec. (a)(5). Pub. L. 102-232, § 302(e)(6), repealed Pub. L. 101-649, § 162(e)(1). See 1990 Amendment note below.

Subsec. (a)(5)(C). Pub. L. 102-232, § 307(a)(6), which directed the substitution of "immigrants seeking admission or adjustment of status under paragraph (2) or (3) of section 1153(b) of this title" for "preference immigrants" and all that followed through the end, was executed by making the substitution for "preference immigrant aliens described in paragraph (3) or (6) of section 1153(a) of this title and to nonpreference immigrant aliens described in section 1153(a)(7) of this title" to reflect the probable intent of Congress.

Subsec. (a)(6)(B). Pub. L. 102-232, § 307(a)(7), in closing provisions, substituted "(a) who seeks" for "who seeks", ", or (b) who seeks admission" for "(or", and "felony," for "felony)".

Subsec. (a)(6)(E)(ii), (iii). Pub. L. 102-232, § 307(a)(8), added cl. (ii) and redesignated former cl. (ii) as (iii).

Subsec. (a)(8)(B). Pub. L. 102-232, § 307(a)(9), substituted "person" for "alien" after "Any".

Subsec. (a)(9)(C)(i). Pub. L. 102-232, § 307(a)(10)(A), substituted "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 excludable until the child is surrendered to the person granted custody by that order" for "a court order granting custody to a citizen of the United States of a child having a lawful claim to United States citizenship, detains, retains, or withholds custody of the child outside the United States from the United States citizen granted custody, is excludable until the child is surrendered to such United States citizen".

Subsec. (a)(9)(C)(ii). Pub. L. 102-232, § 307(a)(10)(B), substituted "so long as the child is located in a foreign state that is a party” for “to an alien who is a national of a foreign state that is a signatory".

Subsec. (a)(17). Pub. L. 102-232, § 306(a)(12), amended Pub. L. 101-649, § 514(a). See 1990 Amendment note below.

Subsec. (c). Pub. L. 102-232, § 307(b), substituted "paragraphs (3) and (9)(C)" for "subparagraphs (A), (B), (C), or (E) of paragraph (3)”.

Pub. L. 102-232, § 306(a)(10), substituted "one or more aggravated felonies and has served for such felony or felonies" for "an aggravated felony and has served".

Subsec. (d)(3). Pub. L. 102-232, § 307(c), substituted “(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii),” for “(3)(A),” in two places and "(3)(E)” for “(3)(D)” in two places.

Subsec. (d)(11). Pub. L. 102-232, § 307(d), inserted "and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 1153(a) of this title (other than paragraph (4) thereof)" after "section 1181(b) of this title".

Subsec. (g)(1). Pub. L. 102-232, § 307(e), substituted "subsection (a)(1)(A)(i)” for “section (a)(1)(A)(i)”.

Subsec. (h). Pub. L. 102-232, § 307(f)(1), struck out "in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or alien lawfully admitted for permanent residence" after “marijuana” in introductory provisions.

Subsec. (h)(1). Pub. L. 102-232, § 307(f)(2), designated existing provisions as subpar. (A) and inserted "in the case of any immigrant" in introductory provisions, redesignated former subpars. (A) to (C) as cls. (i) to (iii), respectively, struck out "and" at end of cl. (i), substituted "or" for "and" at end of cl. (iii), and added subpar. (B).

Subsec. (i). Pub. L. 102-232, § 307(g), substituted “immigrant" and “immigrant's" for "alien” and “alien's", respectively, wherever appearing.

Subsec. (j)(1)(D). Pub. L. 102-232, § 309(b)(7), substituted "United States Information Agency" for "International Communication Agency".

Subsec. (j)(2). Pub. L. 102-232, § 303(a)(5)(B), added par. (2) and struck out former par. (2) which related to inapplicability of par. (1)(A) and (B)(ii)(I) requirements between effective date of subsec. and Dec. 31, 1983.

Subsec. (j)(3). Pub. L. 102-232, § 309(b)(7), substituted "United States Information Agency" for "International Communication Agency".

Subsec. (m)(2)(A). Pub. L. 102-232, § 302(e)(9), inserted, after first sentence of closing provisions, sentence relating to attestation that facility will not replace nurse with nonimmigrant for period of one year after layoff.

Subsec. (n)(1). Pub. L. 102-232, § 303(a)(7)(B)(ii), (iii), redesignated matter after first sentence of subpar. (D) as closing provisions of par. (1), substituted "(and such accompanying documents as are necessary)" for "(and accompanying documentation)", and inserted last two sentences providing for review and certification by Secretary of Labor. Subsec. L. 102-232, § 303(a)(7)(B)(i), in introductory provisions substitut

(n)(1)(A)(i).

Pub.

ed "admitted or provided status as a nonimmigrant described in section 1101(a)(15)(H)(i)(b) of this title" for "and to other individuals employed in the occupational classification and in the area of employment", in closing provisions substituted "based on the best information available" for "determined", and amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: "the actual wage level for the occupational classification at the place of employment, or". Subsec. (n)(1)(A)(ii). Pub. L. 102-232, § 303(a)(6), substituted "for such a nonimmigrant" for "for such aliens".

Subsec. (n)(1)(D). Pub. L. 102-232, § 303(a)(7)(B)(iii), redesignated matter after first sentence as closing provisions of par. (1).

Subsec. (n)(2)(C). Pub. L. 102-232, § 303(a)(7)(B)(iv), substituted "of paragraph (1)(B), a substantial failure to meet a condition of paragraphs (1)(C) or (1)(D), a willful failure to meet a condition of paragraph (1)(A), or a misrepresentation" for "(or a substantial failure in the case of a condition described in subparagraph (C) or (D) of paragraph (1)) or misrepresentation".

Subsec. (n)(2)(D). Pub. L. 102-232, § 303(a)(7)(B)(v), (vi), substituted "If" for "In addition to the sanctions provided under subparagraph (C), if" and inserted before period at end", whether or not a penalty under subparagraph (C) has been imposed".

1990-Subsec. (a). Pub. L. 101-649, § 601(a), amended subsec. (a) generally, decreasing number of classes of excludable aliens from 34 to 9 by broadening descriptions of such classes.

Pub. L. 101-649, § 514(a), as amended by Pub. L. 102-232, § 306(a)(12), substituted “20 years" for "ten years" in par. (17).

Pub. L. 101-649, which provided that par. (5) is amended in subpar. (A), by striking "Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor" and inserting "Any alien who seeks admission or status as an immigrant under paragraph (2) or (3) of section 1153(b) of this title, in subpar. (B), by inserting "who seeks admission or status as an immigrant under paragraph (2) or (3) of section 1153(b) of this title" after "An alien" the first place it appears, and by striking subpar. (C), was repealed by Pub. L. 102-232, § 302(e)(6). See Construction of 1990 Amendment note below.

Pub. L. 101-246, § 131(a), added par. (34) which read as follows: "Any alien who has committed in the United States any serious criminal offense, as defined in section 1101(h) of this title, for whom immunity from criminal jurisdiction was exercised with respect to that offense, who as a consequence of the offense and the exercise of immunity has departed the United States, and who has not subsequently submitted fully to the jurisdiction of the court in the United States with jurisdiction over the offense."

Subsec. (b). Pub. L. 101-649, § 601(b), added subsec. (b) and struck out former subsec. (b) which related to nonapplicability of subsec. (a)(25).

Subsec. (c). Pub. L. 101-649, § 601(d)(1), substituted "subsection (a) of this section (other than subparagraphs (A), (B), (C), or (E) of paragraph (3))" for "paragraph (1) through (25) and paragraphs (30) and (31) of subsection (a) of this section".

Pub. L. 101-649, § 511(a), inserted at end "The first sentence of this subsection shall not apply to an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years." Subsec. (d)(1), (2). Pub. L. 101-649, § 601(d)(2)(A), struck out pars. (1) and (2) which related to applicability of subsec. (a)(11), (25), and (28).

Subsec. (d)(3). Pub. L. 101-649, § 601(d)(2)(B), substi tuted "under subsection (a) of this section (other than paragraphs (3)(A), (3)(C), and (3)(D) of such subsection)" for "under one or more of the paragraphs enumerated in subsection (a) of this section (other than paragraphs (27), (29), and (33))" wherever appearing, and inserted at end "The Attorney General shall prescribe conditions, including exaction of such bonds as

[ocr errors][ocr errors]

may be necessary, to control and regulate the admission and return of excludable aliens applying for temporary admission under this paragraph."

Subsec. (d)(4). Pub. L. 101-649, § 601(d)(2)(C), substituted "(7)(B)(i)” for “(26)”.

Subsec. (d)(5)(A). Pub. L. 101-649, § 202(b), inserted "or in section 1184(f) of this title" after "except as provided in subparagraph (B)".

Subsec. (d)(6). Pub. L. 101-649, § 601(d)(2)(A), struck out par. (6) which directed that Attorney General prescribe conditions to control excludable aliens applying for temporary admission.

Subsec. (d)(7). Pub. L. 101-649, § 601(d)(2)(D), substituted "(other than paragraph (7))" for "of this section, except paragraphs (20), (21), and (26),”.

Subsec. (d)(8). Pub. L. 101-649, § 601(d)(2)(E), substituted “(3)(A), (3)(B), (3)(C), and (7)(B)” for “(26), (27), and (29)".

Subsec. (d)(9), (10). Pub. L. 101-649, § 601(d)(2)(A), struck out pars. (9) and (10) which related to applicability of pars. (7) and (15), respectively, of subsec. (a). Subsec. (d)(11). Pub. L. 101-649, § 601(d)(2)(F), added par. (11).

Subsec. (g). Pub. L. 101-649, § 601(d)(3), amended subsec. (g) generally, substituting provisions relating to waiver of application for provisions relating to admission of mentally retarded, tubercular, and mentally ill aliens.

Subsec. (h). Pub. L. 101-649, § 601(d)(4), amended subsec. (h) generally, substituting provisions relating to waiver of certain subsec. (a)(2) provisions for provisions relating to nonapplicability of subsec. (a)(9), (10), (12), (23), and (34).

Pub. L. 101-246, § 131(c), substituted “(12), or (34)” for "or (12)".

Subsec. (i). Pub. L. 101-649, § 601(d)(5), amended subsec. (i) generally, substituting provisions relating to waiver of subsec. (a)(6)(C)(i) of this section for provisions relating to admission of alien spouse, parent or child excludable for fraud.

Subsec. (k). Pub. L. 101-649, § 601(d)(6), substituted "paragraph (5)(A) or (7)(A)(i)" for "paragraph (14), (20), or (21)".

Subsec. (1). Pub. L. 101-649, § 601(d)(7), substituted "paragraph (7)(B)(i)" for “paragraph (26)(B)".

Subsec. (m)(2)(A). Pub. L. 101-649, § 162(f)(2)(B), in opening provision, struck out ", with respect to a facility for which an alien will perform services," before "is an attestation, in cl. (iii) inserted "employed by the facility" after "The alien", and inserted at end "In the case of an alien for whom an employer has filed an attestation under this subparagraph and who is performing services at a worksite other than the employer's or other than a worksite controlled by the employer, the Secretary may waive such requirements for the attestation for the worksite as may be appropriate in order to avoid duplicative attestations, in cases of temporary, emergency circumstances, with respect to information not within the knowledge of the attestor, or for other good cause."

Subsec. (n). Pub. L. 101-649, § 205(c)(3), added subsec. (n).

1989-Subsec. (m). Pub. L. 101-238 added subsec.

(m).

EFFECTIVE DATE OF 1993 AMENDMENT

Section 2007(b) of Pub. L. 103-43 provided that: "The amendment made by subsection (a) [amending this section] shall take effect 30 days after the date of the enactment of this Act [June 10, 1993]."

EFFECTIVE DATE OF 1991 Amendment Amendment by sections 302(e)(6), 303(a)(5)(B), (6), (7)(B), 306(a)(10), (12), 307(a)-(g) of Pub. L. 102-232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101-649, see section 310(1) of Pub. L. 102-232, set out as a note under section 1101 of this title.

Section 302(e)(9) of Pub. L. 102-232 provided that the amendment made by that section is effective as if

included in the Immigration Nursing Relief Act of 1989, Pub. L. 101-238.

EFFECTIVE DATE OF 1990 AMENDMENT Amendment by section 162(e)(1) of Pub. L. 101-649 effective Oct. 1, 1991, and applicable beginning with fiscal year 1992, with general transition provisions and admissibility standards, see section 161(a), (c), (d) of Pub. L. 101-649, set out as a note under section 1101 of this title.

Amendment by section 162(f)(2)(B) of Pub. L. 101-649 applicable as though included in the enactment of Pub. L. 101-238, see section 162(f)(3) of Pub. L. 101-649, set out as a note under section 1101 of this title.

Section 202(c) of Pub. L. 101-649 provided that: "The amendments made by this section [amending this section and section 1184 of this title] shall take effect 60 days after the date of the enactment of this Act [Nov. 29, 1990]."

Amendment by section 205(c)(3) of Pub. L. 101-649 effective Oct. 1, 1991, see section 231 of Pub. L. 101-649, set out as a note under section 1101 of this title.

Section 511(b) of Pub. L. 101-649 provided that: "The amendment made by subsection (a) [amending this section] shall apply to admissions occurring after the date of the enactment of this Act [Nov. 29, 1990]." Section 514(b) of Pub. L. 101-649 provided that: "The amendment made by subsection (a) [amending this section] shall apply to admissions occurring on or after January 1, 1991."

Amendment by section 601(a), (b), and (d) of Pub. L. 101-649 applicable to individuals entering United States on or after June 1, 1991, see section 601(e)(1) of Pub. L. 101-649, set out as a note under section 1101 of this title.

EFFECTIVE DATE OF 1989 AMENDMENT

Section 3(d) of Pub. L. 101-238 provided that: "The amendments made by the previous provisions of this section [amending this section and section 1101 of this title] shall apply to classification petitions filed for nonimmigrant status only during the 5-year period beginning on the first day of the 9th month beginning after the date of the enactment of this Act [Dec. 18, 1989]."

EFFECTIVE DATE OF 1988 AMENDMENTS

Amendment by section 8(f) of Pub. L. 100-525 effective as if included in the enactment of the Immigration and Nationality Act Amendments of 1986, Pub. L. 99-653, see section 309(b)(15) of Pub. L. 102-232, set out as an Effective and Termination Dates of 1988 Amendments note under section 1101 of this title.

CONSTRUCTION OF 1990 AMENDMENT

Section 302(e)(6) of Pub. L. 102-232 provided that: "Paragraph (1) of section 162(e) of the Immigration Act of 1990 [Pub. L. 101-649, amending this section] is repealed, and the provisions of law amended by such paragraph are restored as though such paragraph had not been enacted."

VISA LOOKout SystemS

Pub. L. 102-138, title I, § 128, Oct. 28, 1991, 105 Stat. 660, provided that:

"(a) VISAS.-The Secretary of State may not include in the Automated Visa Lookout System, or in any other system or list which maintains information about the excludability of aliens under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.), the name of any alien who is not excludable from the United States under the Immigration and Nationality Act, subject to the provisions of this section.

"(b) CORRECTION OF LISTS.-Not later than 3 years after the date of enactment of this Act [Oct. 28, 1991], the Secretary of State shall

"(1) correct the Automated Visa Lookout System,
or any other system or list which maintains informa-
tion about the excludability of aliens under the Im-
migration and Nationality Act, by deleting the name
of any alien not excludable under the Immigration
and Nationality Act; and

"(2) report to the Congress concerning the comple-
tion of such correction process.

"(c) REPORT ON CORRECTION PROCESS.-

"(1) Not later than 90 days after the date of enact-
ment of this Act [Oct. 28, 19911, the Secretary of
State, in coordination with the heads of other appro-
priate Government agencies, shall prepare and
submit to the appropriate congressional committees,
a plan which sets forth the manner in which the De-
partment of State will correct the Automated Visa
Lookout System, and any other system or list as set
forth in subsection (b).

“(2) Not later than 1 year after the date of enact-
ment of this Act [Oct. 28, 1991], the Secretary of
State shall report to the appropriate congressional
committees on the progress made toward completing
the correction of lists as set forth in subsection (b).
"(d) APPLICATION.-This section refers to the Immi-
gration and Nationality Act as in effect on and after
June 1, 1991.

"(e) LIMITATION.--

"(1) The Secretary may add or retain in such
system or list the names of aliens who are not ex-
cludable only if they are included for otherwise au-
thorized law enforcement purposes or other lawful
purposes of the Department of State. A name in-
cluded for other lawful purposes under this para-
graph shall include a notation which clearly and dis-
tinctly indicates that such person is not presently
excludable. The Secretary of State shall adopt pro-
cedures to ensure that visas are not denied to such
individuals for any reason not set forth in the Immi-
gration and Nationality Act [8 U.S.C. 1101 et seq.).
"(2) The Secretary shall publish in the Federal
Register regulations and standards concerning main-
tenance and use by the Department of State of sys-
tems and lists for purposes described in paragraph
(1).

"(3) Nothing in this section may be construed as
creating new authority or expanding any existing
authority for any activity not otherwise authorized
by law.

"(f) DEFINITION.-As used in this section the term
'appropriate congressional committees' means the
Committee on the Judiciary and the Committee on
Foreign Affairs of the House of Representatives and
the Committee on the Judiciary and the Committee
on Foreign Relations of the Senate."

CHANGES IN LABOR CERTIFICATION PROCESS
Section 122 of Pub. L. 101-649 provided that:

"(a) LABOR MARKET INFORMATION PILOT PROGRAM FOR
EMPLOYMENT-BASED IMMIGRANTS.—(1) The Secretary of
Labor shall establish a pilot program which provides
for a determination, in accordance with section 553 of
title 5, United States Code, of labor shortages or sur-
pluses in up to 10 defined occupational classifications
in the United States. In making such determinations,
the Secretary shall consider certifications approved
under section 212(a)(5)(A) of the Immigration and Na-
tionality Act [8 U.S.C. 1182(a)(5)(A)] and labor market
and other information.

"(2)(A) If under the pilot program there is a deter-
mination that there is a labor shortage with respect to
an occupational classification, a certification under
section 212(a)(5)(A) of the Immigration and National-
ity Act for petitions for that occupational classifica-
tion shall be deemed to have been issued.

"(B) If under the pilot program there is a determina-
tion that there is a labor surplus with respect to an oc-
cupational classification, the Secretary of Labor may
nonetheless make a certification under section
212(a)(5)(A) of the Immigration and Nationality Act
with regard to a specific job opportunity in the occu-

pational classification if the employer submits evi-
dence, based on extensive recruitment efforts (includ-
ing such efforts as the Secretary may require), demon-
strating that the employer meets all the requirements
for certification under such section.

"(3) The pilot program under this subsection shall
only be effective for applications for certifications
filed during the 3-fiscal-year period beginning with
fiscal year 1992.

"(4) By not later than April 1, 1994, the Secretary of
Labor shall report to the Committees on Education
and Labor and Judiciary of the House of Representa.
tives and the Committees on Labor and Human Re-
sources and the Judiciary of the Senate on the oper-
ation of the pilot program under this subsection and
whether the program should be extended and the
number of defined occupational classifications permit-
ted under the program if it is extended.

"(b) NOTICE IN LABOR CERTIFICATIONS.-The Secre-
tary of Labor shall provide, in the labor certification
process under section 212(a)(5)(A) of the Immigration
and Nationality Act [8 U.S.C. 1182(a)(5)(A)], that—

"(1) no certification may be made unless the appli-
cant for certification has, at the time of filing the
application, provided notice of the filing (A) to the
bargaining representative (if any) of the employer's
employees in the occupational classification and
area for which aliens are sought, or (B) if there is no
such bargaining representative, to employees em-
ployed at the facility through posting in conspicuous
locations; and

"(2) any person may submit documentary evidence
bearing on the application for certification (such as
information on available workers, information on
wages and working conditions, and information on
the employer's failure to meet terms and conditions
with respect to the employment of alien workers and
co-workers)."

REVIEW OF EXCLUSION LISTS

Section 601(c) of Pub. L. 101-649 provided that:
"The Attorney General and the Secretary of State
shall develop protocols and guidelines for updating
lookout books and the automated visa lookout system
and similar mechanisms for the screening of aliens ap-
plying for visas for admission, or for admission, to the
United States. Such protocols and guidelines shall be
developed in a manner that ensures that in the case of
an alien-

"(1) whose name is in such system, and

"(2) who either (A) applies for entry after the ef-
fective date of the amendments made by this section
[see Effective Date of 1990 Amendment note above],
or (B) requests (in writing to a local consular office
after such date) a review, without seeking admission,
of the alien's continued excludability under the Im-
migration and Nationality Act [8 U.S.C. 1101 et
seq.),

if the alien is no longer excludable because of an
amendment made by this section the alien's name
shall be removed from such books and system and the
alien shall be informed of such removal and if the
alien continues to be excludable the alien shall be in-
formed of such determination."

IMPLEMENTATION OF REQUIREMENTS FOR Admission of
NONIMMIGRANT NURSES DURING 5-YEAR PERIOD
Section 3(c) of Pub. L. 101–238 provided that: "The
Secretary of Labor (in consultation with the Secretary
of Health and Human Services) shall—

"(1) first publish final regulations to carry out sec-
tion 212(m) of the Immigration and Nationality Act
[8 U.S.C. 1182(m)] (as added by this section) not
later than the first day of the 8th month beginning
after the date of the enactment of this Act [Dec. 18,
1989]; and

“(2) provide for the appointment (by January 1,
1991) of an advisory group, including representatives

of the Secretary, the Secretary of Health and Human Services, the Attorney General, hospitals, and labor organizations representing registered nurses, to advise the Secretary

"(A) concerning the impact of this section on the nursing shortage,

"(B) on programs that medical institutions may implement to recruit and retain registered nurses who are United States citizens or immigrants who are authorized to perform nursing services,

"(C) on the formulation of State recruitment and retention plans under section 212(m)(3) of the Immigration and Nationality Act, and

"(D) on the advisability of extending the amendments made by this section [amending sections 1101 and 1182 of this title] beyond the 5-year period described in subsection (d) [set out above]."

PROHIBITION ON EXCLUSION OR DEPORTATION OF
ALIENS ON CERTAIN GROUNDS

Section 901 of Pub. L. 100-204, as amended by Pub. L. 100-461, title V, § 555, Oct. 1, 1988, 102 Stat. 2268-36; Pub. L. 101-246, title I, § 128, Feb. 16, 1990, 104 Stat. 30, which provided that no nonimmigrant alien was to be denied a visa or excluded from admission into the United States, or subject to deportation because of any past, current or expected beliefs, statements or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States, and which provided construction regarding excludable aliens and standing to sue, was repealed by Pub. L. 101-649, title VI, § 603(a)(21), Nov. 29, 1990, 104 Stat. 5084.

REGULATIONS GOVERNING ADMISSION, DETENTION, AND TRAVEL OF NONIMMIGRANT ALIENS IN GUAM PURSUANT TO VISA WAIVERS

Section 14(b) of Pub. L. 99-396, as amended by Pub. L. 100-525, § 3(1)(B), Oct. 24, 1988, 102 Stat. 2614, required Attorney General to issue, within 90 days after Aug. 27, 1986, regulations governing the admission, detention, and travel of nonimmigrant aliens pursuant to the visa waiver authorized by the amendment made by section 14(a) of Pub. L. 99-396, was repealed by Pub. L. 101-649, title VI, § 603(a)(19), Nov. 29, 1990, 104 Stat. 5084.

ANNUAL REPORT TO CONGRESS ON IMPLEMENTATION OF PROVISIONS AUTHORIZING WAIVER OF CERTAIN REQUIREMENTS FOR NONIMMIGRANT VISITORS TO GUAM Section 14(c) of Pub. L. 99-396, as amended by Pub. L. 100-525, § 3(1)(B), (C), Oct. 24, 1988, 102 Stat. 2614, required Attorney General to submit a report each year on implementation of 8 U.S.C. 1182(1) to Committees on the Judiciary and Interior and Insular Affairs of House of Representatives and Committees on the Judiciary and Energy and Natural Resources of Senate, was repealed by Pub. L. 101-649, title VI, § 603(a)(19), Nov. 29, 1990, 104 Stat. 5084.

EXECUTIVE ORDER NO. 12324

Ex. Ord. No. 12324, Sept. 29, 1981, 46 F.R. 48109, which directed Secretary of State to enter into cooperative arrangements with foreign governments for purpose of preventing illegal migration to United States by sea, directed Secretary of the Department in which the Coast Guard is operating to issue appropriate instructions to Coast Guard to enforce suspension of entry of undocumented aliens and interdiction of any defined vessel carrying such aliens, and directed Attorney General to ensure fair enforcement of immigration laws and strict observance of international obligations of United States concerning those who genuinely flee persecution in their homeland, was revoked and replaced by Ex. Ord. No. 12807, § 4, May 24, 1992, 57 F.R. 23134, set out below.

EX. ORD. NO. 12807. INTERDICTION OF ILLEGAL ALIENS Ex. Ord. No. 12807, May 24, 1992, 57 F.R. 23133, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a)(1) of the Immigration and Nationality Act, as amended (8 U.S.C. 1182(f) and 1185(a)(1)), and whereas:

(1) The President has authority to suspend the entry of aliens coming by sea to the United States without necessary documentation, to establish reasonable rules and regulations regarding, and other limitations on, the entry or attempted entry of aliens into the United States, and to repatriate aliens interdicted beyond the territorial sea of the United States;

(2) The international legal obligations of the United States under the United Nations Protocol Relating to the Status of Refugees (U.S. T.I.A.S. 6577; 19 U.S.T. 6223) to apply Article 33 of the United Nations Convention Relating to the Status of Refugees do not extend to persons located outside the territory of the United States;

(3) Proclamation No. 4865 [set out above] suspends the entry of all undocumented aliens into the United States by the high seas; and

(4) There continues to be a serious problem of persons attempting to come to the United States by sea without necessary documentation and otherwise illegally;

I, GEORGE BUSH, President of the United States of America, hereby order as follows:

SECTION 1. The Secretary of State shall undertake to enter into, on behalf of the United States, cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea.

SEC. 2. (a) The Secretary of the Department in which the Coast Guard is operating, in consultation, where appropriate, with the Secretary of Defense, the Attorney General, and the Secretary of State, shall issue appropriate instructions to the Coast Guard in order to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any defined vessel carrying such aliens.

(b) Those instructions shall apply to any of the following defined vessels:

(1) Vessels of the United States, meaning any vessel documented or numbered pursuant to the laws of the United States, or owned in whole or in part by the United States, a citizen of the United States, or a corporation incorporated under the laws of the United States or any State, Territory, District, Commonwealth, or possession thereof, unless the vessel has been granted nationality by a foreign nation in accord with Article 5 of the Convention on the High Seas of 1958 (U.S. T.I.A.S. 5200; 13 U.S.T. 2312).

(2) Vessels without nationality or vessels assimilated to vessels without nationality in accordance with paragraph (2) of Article 6 of the Convention on the High Seas of 1958 (U.S. T.I.A.S. 5200; 13 U.S.T. 2312).

(3) Vessels of foreign nations with whom we have arrangements authorizing the United States to stop and board such vessels.

(c) Those instructions to the Coast Guard shall include appropriate directives providing for the Coast Guard:

(1) To stop and board defined vessels, when there is reason to believe that such vessels are engaged in the irregular transportation of persons or violations of United States law or the law of a country with which the United States has an arrangement authorizing such action.

(2) To make inquiries of those on board, examine documents and take such actions as are necessary to carry out this order.

(3) To return the vessel and its passengers to the country from which it came, or to another country, when there is reason to believe that an offense is

75-801 O-94—38: QL3

« AnteriorContinuar »