§ 1186b.
Conditional permanent resident status for certain alien entrepreneurs, spouses, and children
(b)
Termination of status if finding that qualifying investment improper
(1)
In general
In the case of an alien investor with permanent resident status on a conditional basis under subsection (a), if the Secretary of Homeland Security determines, before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence, that—
(A)
the investment in the commercial enterprise was intended solely as a means of evading the immigration laws of the United States,
(B)
the alien did not invest the requisite capital; or
then the Secretary of Homeland Security shall so notify the alien involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (and the alien spouse and alien child) involved as of the date of the determination.
(2)
Hearing in removal proceeding
Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.
(c)
Requirements for removal of condition
(1)
In general
Except as provided in paragraph (3)(D), in order for the conditional basis established under subsection (a) for an alien investor, alien spouse, or alien child to be removed—
(A)
the alien investor shall submit to the Secretary of Homeland Security, during the period described in subsection (d)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1);
(B)
in accordance with subsection (d)(3), the alien investor shall appear for a personal interview before an officer or employee of the Department of Homeland Security respecting the facts and information described in subsection (d)(1); and
(2)
Termination of permanent resident status for failure to file petition or have personal interview
(A)
In general
In the case of an alien with permanent resident status on a conditional basis under subsection (a), if—
(i)
no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or
(ii)
unless there is good cause shown, the alien investor fails to appear at the interview described in paragraph (1)(B) (if required under subsection (d)(3)),
the Secretary of Homeland Security shall terminate the permanent resident status of the alien (and the alien’s spouse and children if it was obtained on a conditional basis under this section or
section 1186a of this title) as of the second anniversary of the alien’s lawful admission for permanent residence.
(B)
Hearing in removal proceeding
In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B).
(3)
Determination after petition and interview
(A)
In general
If—
(i)
a petition is filed in accordance with the provisions of paragraph (1)(A), and
(ii)
the alien investor appears at any interview described in paragraph (1)(B),
the Secretary of Homeland Security shall make a determination, within 90 days of the date of such filing or interview (whichever is later), as to whether the facts and information described in subsection (d)(1) and alleged in the petition are true with respect to the qualifying commercial enterprise.
(B)
Removal or extension of conditional basis
(i)
In general
Except as provided in clause (ii), if the Secretary determines that the facts and information contained in a petition submitted under paragraph (1)(A) are true, including demonstrating that the alien complied with subsection (d)(1)(B)(i), the Secretary shall—
(I)
notify the alien involved of such determination; and
(II)
remove the conditional basis of the alien’s status effective as of the second anniversary of the alien’s lawful admission for permanent residence.
(ii)
Exception
If the petition demonstrates that the facts and information are true and that the alien is in compliance with subsection (d)(1)(B)(ii)—
(I)
the Secretary, in the Secretary’s discretion, may provide a 1-year extension of the alien’s conditional status; and
(II)
(aa)
if the alien files a petition not later than 30 days after the third anniversary of the alien’s lawful admission for permanent residence demonstrating that the alien complied with subsection (d)(1)(B)(i), the Secretary shall remove the conditional basis of the alien’s status effective as of such third anniversary; or
(bb)
if the alien does not file the petition described in item (aa), the conditional status shall terminate at the end of such additional year.
(C)
Termination if adverse determination
If the Secretary of Homeland Security determines that such facts and information are not true, the Secretary of Homeland Security shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien investor, alien spouse, or alien child as of the date of the determination.
(D)
Hearing in removal proceeding
Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) and alleged in the petition are not true with respect to the qualifying commercial enterprise.
(e)
Treatment of period for purposes of naturalization
For purposes of subchapter III, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence.
([June 27, 1952, ch. 477], title II, ch. 2, § 216A, as added [Pub. L. 101–649, title I, § 121(b)(1)], Nov. 29, 1990, [104 Stat. 4990]; amended [Pub. L. 102–232, title III, § 302(b)(3)], Dec. 12, 1991, [105 Stat. 1743]; [Pub. L. 104–208, div. C, title III, § 308(e)(8)], Sept. 30, 1996, [110 Stat. 3009–620]; [Pub. L. 107–273, div. C, title I, § 11036(b)], Nov. 2, 2002, [116 Stat. 1847]; [Pub. L. 117–103, div. BB, § 104(a)], Mar. 15, 2022, [136 Stat. 1100].)