(b) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and (II) the alien is not a threat to the security of the United States.

(iv) EXCEPTION FOR CLOSE FAMILY MEMBERS.-The Attorney General may, in the Attorney General's discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States. (E) PARTICIPANTS IN NAZI PERSECUTIONS OR GENOCIDE.

(i) PARTICIPATION IN NAZI PERSECUTIONS.-Any alien who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with

(I) the Nazi government of Germany,

(II) any government in any area occupied by the military forces of the Nazi government of Germany,

(III) any government established with the assistance or cooperation of the Nazi government of Germany, or

(IV) any government which was an ally of the Nazi government of Germany,

ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion is excludable.

(ii) PARTICIPATION IN GENOCIDE.-Any alien who has engaged in conduct that is defined as genocide for purposes of the International Convention on the Prevention and Punishment of Genocide is excludable.

(4) PUBLIC CHARGE.-Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is excludable. 86

(5) LABOR CERTIFICATION AND QUALIFICATIONS FOR CERTAIN

86 §§ 415 & 1621 of the Social Security Act provide for attribution to an alien of a sponsor's income and resources for purposes of determining the eligibility for and amount of benefits of the alien under the AFDC and SSI programs, respectively.

87 § 122(a) of the Immigration Act of 1990 (P.L. 101-649, Nov. 29, 1990, 104 Stat. 4994), shown in Appendix II.A.1., provides for a labor market information pilot program affecting labor certifications under this subparagraph. § 122(b) of that Act (104 Stat. 4995) provides as follows:

Continued

(i) IN GENERAL.-Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor 88 is excludable, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. (ii) CERTAIN ALIENS SUBJECT TO SPECIAL RULE.For purposes of clause (i)(I), an alien described in this clause is an alien who

(I) is a member of the teaching profession, or (II) has exceptional ability in the sciences or the arts.

(B) UNQUALIFIED PHYSICIANS.-An alien 89 who is a graduate of a medical school not accredited by a body or bodies approved for the purpose by the Secretary of Education (regardless of whether such school of medicine is in the United States) and who is coming to the United States principally to perform services as a member of the medical profession is excludable, unless the alien (i) has passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health and Human Services) and (ii) is competent in oral and written English. For purposes of the previous sentence, an alien who is a graduate of a medical school shall be considered to have passed parts I and II of the National Board of Medical Examiners if the alien was fully and permanently licensed to practice medicine in a State on January 9, 1978, and was practicing medicine in a State on that date.

(b) NOTICE IN LABOR CERTIFICATIONS.-The Secretary of Labor shall provide, in the labor certification process under section 212(a)(5)(A) of the Immigration and Nationality Act, that

(1) no certification may be made unless the applicant 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 employed 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).

88 This provision reflects the repeal, by §302(e)(6) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L. 102-232, Dec. 12, 1991, 105 Stat. 1746), of the amendment made by § 162(e)(1)(A) of the Immigration Act of 1990 (P.L. 101-649, Nov. 29, 1990, 104 Stat. 5011).

89 This provision reflects the repeal, by §302(e)(6) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L. 102–232, Dec. 12, 1991, 105 Stat. 1746), of the amendment made by §162(e)(1)(B) of the Immigration Act of 1990 (P.L. 101-649, Nov. 29, 1990, 104 Stat. 5011).

(C) APPLICATION OF GROUNDS.-The grounds for exclusion of aliens under subparagraphs (A) and (B) shall apply to immigrants seeking admission or adjustment of status under paragraph (2) or (3) of section 203(b). 90

(6) ILLEGAL ENTRANTS AND IMMIGRATION VIOLATORS.

(A) ALIENS PREVIOUSLY DEPORTED.—Any alien who has been excluded from admission and deported and who again seeks admission within one year of the date of such deportation is is excludable, unless prior to the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory the Attorney General has consented to the alien's reapplying for admission.

(B) CERTAIN ALIENS PREVIOUSLY REMOVED.—Any alien

who

(i) has been arrested and deported,

(ii) has fallen into distress and has been removed pursuant to this or any prior Act,

(iii) has been removed as an alien enemy, or

(iv) has been removed at Government expense in lieu of deportation pursuant to section 242(b),

and (a) who seeks admission within 5 years of the date of such deportation or removal, or (b) who seeks admission within 20 years in the case of an alien convicted of an aggravated felony, is excludable, unless before the date of the alien's embarkation or reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory the Attorney General has consented to the alien's applying or reapplying for admission.

(C) MISREPRESENTATION.

(i) IN GENERAL.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provided under this Act is excludable. (ii) WAIVER AUTHORIZED.-For provision authorizing waiver of clause (i), see subsection (i). (D) STOWAWAYS.-Any alien who is a stowaway is excludable.

(E) SMUGGLERS.

(i) IN GENERAL.-Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is excludable.

(ii) 91 SPECIAL RULE IN THE CASE OF FAMILY REUNIFICATION.-Clause (i) shall not apply in the case of alien who is an eligible immigrant (as defined in sec

90 § 307(a)(6) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L. 102-232, Dec. 12, 1991, 105 Stat. 1754), as amended by § 219(z)(5) of the Immigration and Nationality Technical Corrections Act of 1994 (P.L. 103-416, 108 Stat. 4318, Oct. 25, 1994), struck "preference immigrant aliens" and inserted the matter appearing after "shall apply to".

Clause (ii) was redesignated as clause (iii) and a new clause (ii) was added by $307(a)(8) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L. 102-232, Dec. 12, 1991, 105 Stat. 1754).

tion 301(b)(1) of the Immigration Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative or under section 203(a)(2) (including under section 112 of the Immigration Act of 1990) or benefits under section 301(a) of the Immigration Act of 1990 if the alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

(iii) WAIVER AUTHORIZED.-For provision authorizing waiver of clause (i), see subsection (d)(11).

(F) SUBJECT OF CIVIL PENALTY.-An alien who is the subject of a final order for violation of section 274C is excludable.

(7) DOCUMENTATION REQUIREMENTS.—

(A) IMMIGRANTS.—

(i) IN GENERAL.-Except as otherwise specifically provided in this Act, any immigrant at the time of application for admission

(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211(a), or

(II) whose visa has been issued without compliance with the provisions of section 203, is excludable.

(ii) WAIVER AUTHORIZED.-For provision authorizing waiver of clause (i), see subsection (k). (B) NONIMMIGRANTS.—

(i) IN GENERAL.-Any nonimmigrant who

(I) is not in possession of a passport valid for a minimum of six months from the date of the expiration of the initial period of the alien's admission or contemplated initial period of stay authorizing the alien to return to the country from which the alien came or to proceed to and enter some other country during such period, or

(II) is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission, is excludable.

(ii) GENERAL WAIVER AUTHORIZED.-For provision authorizing waiver of clause (i), see subsection (d)(4).

(iii) GUAM VISA WAIVER.-For provision authorizing waiver of clause (i) in the case of visitors to Guam, see subsection (1).

(iv) VISA WAIVER PILOT PROGRAM. For authority to waive the requirement of clause (i) under a pilot program, see section 217.

(8) INELIGIBLE FOR CITIZENSHIP.

(A) IN GENERAL.-Any immigrant who is permanently ineligible to citizenship is excludable.

(B) DRAFT EVADERS.-Any person who has departed from or who has remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency is excludable, except that this subparagraph shall not apply to an alien who at the time of such departure was a nonimmigrant and who is seeking to reenter the United States as a nonimmigrant. (9) MISCELLANEOUS.—

(A) PRACTICING POLYGAMISTS.-Any immigrant who is coming to the United States to practice polygamy is excludable.

(B) GUARDIAN REQUIRED TO ACCOMPANY EXCLUDED ALIEN. Any alien accompanying another alien ordered to be excluded and deported and certified to be helpless from sickness or mental or physical disability or infancy pursuant to section 237(e), whose protection or guardianship is required by the alien ordered excluded and deported, is excludable.

(C) INTERNATIONAL CHILD ABDUCTION.

(i) IN GENERAL.-Except as provided in clause (ii), any alien who, after entry of an order by a court in the United States granting custody to a person of a United States citizen child who detains or retains the child, or withholds custody of the child, outside the United States from the person granted custody by that order, is excludable until the child is surrendered to the person granted custody by that order.

(ii) EXCEPTION.-Clause (i) shall not apply so long as the child is located in a foreign state that is a party to the Hague Convention on the Civil Aspects of International Child Abduction.

(b) 92 NOTICES OF DENIALS.-If an alien's application for a visa, for admission to the United States, or for adjustment of status is denied by an immigration or consular officer because the officer determines the alien to be excludable under subsection (a), the officer shall provide the alien with a timely written notice that

(1) states the determination, and

(2) lists the specific provision or provisions of law under which the alien is excludable or ineligible for entry or adjustment of status.

(c) Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion

92 Subsection (b) was amended in its entirety by § 601(b) of the Immigration Act of 1990 (P.L. 101-649, Nov. 29, 1990, 104 Stat. 5075), effective June 1, 1991. For subsection (b) (relating to waiver of literacy requirement) as in effect before that date, see Appendix II.A.2.