Camelot Jack, the coward
Posted: 29 Nov 2013
To understand what this is all about, you must have a 10th grade education, or higher, and, you must be able to think critically, which means that, in addition to being able to put facts and rules together, y’all must have an attention span longer than 30 seconds, and be able to put together thoughts requiring more than 140 characters.
First, the rules: since most of y’all not only have no one in your families who have served in the military, much less someone with seamanship skills, or even been to sea, I will put forward a few of the pertinent rules.
a. Since before The Peloponnesian Wars, seagoing vessels, littorals, boats, and ships, have been expensive. Regardless of whether or not it was a commercial vessel or Navy, people were always concerned about the cost of building, maintaining, and manning them. Because of this expense, insurance was developed, and, certain rules have always been applied to the loss of a vessel, especially at sea. Insurance investigations are inquests, military investigations are court-martials, occasionally, due to the process, courts-martial. Every vessel lost at sea, as a matter of law, must have one;
b. All military services have a book. In fact, all organizations have books. Civil organizations frequently refer to them as manuals, policies & procedures, regulations, &c. In the U.S. Navy, this book includes what specific orders mean and how they are to be carried out. The pertinent rules here are:
1. Observe: when ordered to observe, the unit in question posts lookouts at key points on the ship. On a destroyer, there are at least four lookouts, one forward, one aft, and one along each side. (This may have changed since my day, and allowance must be made for aerial lookouts, submarine lookouts, shoal & reef watches, &c.) A small craft, such as a WW II Patrol Torpedo Boat (PT Boat, FDR’s pork plywood excuse for a destroyer), would have, at the minimum, two lookouts. These lookouts would have been posted either fore & aft, or port & starboard;
2. Watch, or The Watch: ship’s day is divided into six four-hour segments. The ship’s crew is divided into four watches, and a fifth group of non-watch standing personnel, such as the bursar or ship’s doctor. Except for the morning ship’s watch, each watch is further broken down into bells, each bell denoting the turn of the hourglass, which is actually two turns of ½ hour each, such that there are eight bells in each watch, a bell for each turn, totaling 8 bells per watch, four hours per watch. The morning watches, in my time anyway, were of three and five hours, so that the sun driven day started with the watches being able to get a full, cooked breakfast. Ship’s crew is assigned either the port watch or the starboard watch. The engineering staff, or black gang, is also divided into a port and starboard watch. This is the engineering watch, which, obviously, did not exist before the steam engine;
3. Report: exactly what it says. The unit or person ordered to report must report, accurately and truly, what is observed. Often this may be restricted with things like radio silence, encrypted, safely, &c.;
4. Attack: again, exactly what it says. Like many other orders, it may be qualified by clarification, or the Rules of Engagement (R.O.E.),
5. Standing orders: these are orders that are given that cover all sorts of local conditions;
6. General Orders: There are, or were 15 general orders, which apply to almost everyone in the military, almost all the time, under almost all conditions & circumstances;
7. Prepare to abandon ship: this means that everyone should get life jackets on, admin personnel prepare to destroy papers, communiques, code books, &c., crew get into position to launch rafts, 2500’s to transmit an S.O.S./Mayday, and if it’s an engineering problem, the Chief Engineer & Senior Engineering Petty Officer, will designate those black gangers necessary, and they will stay in the engineering spaces fixing the problem until either they report the problem unfixable, or the Captain orders abandon ship. The rest of the crew will be in the prepare mode, which includes that all on deck will be observing for hostile activity of any and all sorts.
Second, the facts: in the incident in question, during wartime, a PT boat was ordered into a strait in the South Seas to observe, report, and attack enemy shipping, during nighttime.
Here are some important facts: First off, in this part of the ocean, there are all sorts of single cell organisms that, when disturbed, glow brightly. Although not particularly noticeable during day-light, when disturbed at night, it’s noticeable from miles away, and, as anyone who has been on a cruise of any kind, the stars at night make for not only considerable brightness, but there are so many of them out, that large objects, such as ships, will block out a silhouette noticeable miles, and hence, many minutes away in travel time.
A strait is a narrow body of water between two pieces of land, frequently restricting a ship’s ability to maneuver, and hence, making it very vulnerable to attack, especially in ambush.
Way is what all ships at sea must make in order to steer. A ship must move at a speed rapid enough, forward or backward, such that the rudder bites the water. A ship that cannot or does not make way, is dead in the water, which immediately necessitates the office of the watch (O.O.W.) to awaken the Captain, so that engineering may be directed to fix the problem, and for the order to prepare to abandon ship may be given. The O.O.W. is also authorized to give this order if he deems it necessary.
There are four basic ways in which a ship may patrol a given area. They are clock-wise racetrack, that is, in an oval; counter-clock-wise race track; clock-wise figure 8; and, counter-clock-wise figure 8. A grid pattern may be overlaid, but inside of each grid, one of the four movements will be used by a surface vessel.
In observing a designated area, the watchers will have high-powered binoculars and sweep the horizon for 180o while reporting every so many sweeps, as determined by the O.O.W., what he sees, and if he sees nothing, he says so. On larger ships, this means an overlap between the four watchers, on small craft, it means that there is no overlap by the watchers, so the O.O.W. must also watch with a 360o sweep overlay.
PT boats could do speeds in excess of 40 knots. Japanese destroyers commonly traveled at about 30 knots, with a top speed of about 38 knots. The obvious point here is that a Japanese WW II destroyer could not possibly catch an American PT boat and ram it.
Here’s the deal: it is not possible, under any honest conditions, for a Japanese destroyer to have rammed PT 109 in the center and split it in half without there being negligence so gross as to warrant the court-martial to find the O.O.W. guilty of manslaughter, and have him stripped of rank busted to seaman 3rd class, and sentenced to 20 years at Portsmouth Naval prison, and then given a Dishonorable Discharge.
Here are some things to consider with this scenario. If the PT boat were manned and the watch properly set, a destroyer would have been seen coming hull-down over the horizon as the smoke from its oil burning boilers would have occluded the stars. As she came hull-up, the phosphorescence of the disturbed microorganisms would have become noticeable as her bow-wave. Traveling at 30 knots, or about two minutes a mile, the PT boat would have at least 10 minutes to observe, report, and attack, said destroyer. If, on the other hand, PT 109 were dead in the water, then, except for the black gang, the entire crew would have been on deck, prepared to abandon ship, and looking for any and all hostile activity.
With at least 10 minutes warning, if she had been dead in the water, the entire crew, with supplies, would have been able to safely abandon ship. In addition, when Admiral Halsey heard of a PT boat being rammed, he demanded to see the court-martial. There was not one. Instead, there was interference by FDR and the ordering of a medal of valor for the PT boat’s commander. Oddly enough, the commander who received this award, had a father who was FDR’s good friend and bubba. Joseph Kennedy, Sr., a man how had made his money from a ‘smart’ marriage, rum running – a federal felony, stock manipulation, insider trading, and movie producing.
This was the man whom Nikita Khrushchev euchred into killing The Monroe Doctrine, thereby creating Cuba as the safe haven for the KGB’s interference in the West Coast of Africa, and all of Central and South America; and set the stage for LBJ’s gross intervention in Viet Nam. This was the man who set the stage for the failing of integration and civil rights non-discrimination.
This reverence for a coward and philanderer has been a significant factor in the splintering of American Culture, and the criminal success for the likes of our current crop of politicians.
Look it up, there is no court-martial for the loss of the United States Navy warship, PT 109. Look up the facts, it is not possible for a functioning warship to be rammed under the circumstances reported. Look it up, if PT 109 was dead in the water, as reported in the now missing Japanese destroyer’s log book, then why wasn’t the crew at prepare to abandon ship, which means that there would have been NO casualties.
I fail to understand why anyone venerates and praises this coward. He and his are part of the problem.
December 9, 2013
November 29, 2013
John F. Kennedy, a little truth, a big problem
November 8, 2013
August 28, 2013
August 19, 2013
The Disconnect
The Disconnect (19 Aug 13)
So, I got a call from Arbitron asking me to take their survey on what did I watch on TV yesterday, and what did I listen to on the radio. I answered all of the young lady’s questions without a problem until we got to the demographics section.
In order to be accurate, she said, she needed to know my ethnic background. She read off her available choices, to which I responded, “American”, and to which her response was, she did not have that choice, was I or was I not, and she went through her list again. When I repeated, “I’m an American”, she told me that she could not enter that, and that if I refused to answer, my survey was incomplete and could not then be used, so my viewing preferences would not be entered into her statistics.
So, Americans are not part of the corporate statistical universe. What does that tell you of AMERICA TODAY?
BTW, I repeated, “American”, to which she said, “Thank you,” and politely hung up the phone.
August 18, 2013
July 10, 2013
Trending: Secession
Back in 2006 I started research for a book on Public Sector Organizational Theory which resulted in The Heartland Plan; federal government by, for and of, the taxpayer. When Obama started running for prez in 2008, I started research on constitutional law and construction resulting in The Albany Plan Re-Visited, now available at http://www.bn.com/ebooks for download. The Albany Plan Re-Visited includes a complete section on nullification and an expanded one on secession with a complete outline for a new federal government, one responsive to the needs of THE TAXPAYER, and not various special interest groups. Below is what I forecast back in 2008.
Buy, read, and promote: The Albany Plan Re-Visited.
http://coloradoindependent.com/4448/one-in-five-americans-are-whistling-dixie-on-state-secession
One-in-five Americans are whistling Dixie on state secession
By Wendy Norris
Monday, July 28, 2008 at 10:37 am
The People’s Republic of Colorado may not be a pipe dream after all for right-wing states’ rights zealots and left-wing peaceniks.
A new Zobgy/Middlebury Institute poll reports that 22 percent of respondents believe that states have the right to peaceably secede from the United States. The figures go up considerably among liberals, Latinos, blacks, young people and Southern residents.
From the press release:
The level of support for the right of secession was consistent in every region in the country, though the percentage was slightly higher in the South (26%) and the East (24%). The figures were also consistent for every age group, but backing was strongest among younger adults, as 40% among those age 18 to 24 and 24% among those age 25 to 34 agreed states and regions have secession rights.
Broken down by race, the highest percentage agreeing with the right to secede was among Hispanics (43%) and African-Americans (40%). Among white respondents, 17% said states or regions should have the right to peaceably secede.
Politically, liberal thinkers were much more likely to favor the right to secession for states and regions, as 32% of mainline liberals agreed with the concept. Among the very liberal the support was only slightly less enthusiastic – 28% said they favored such a right. Meanwhile, just 17% of mainline conservatives thought it should exist as an option for states or regions of the nation.
Asked whether they would support a secessionist movement in their own state, 18% said they would, with those in the South most likely to say they would back such an effort. In the South, 24% said they would support such an effort, while 15% in the West and Midwest said the same. Here, too, younger adults were more likely than older adults to be supportive – 35% of those under age 30 would support secession in their state, compared to just 17% of those over age 65. Among African Americans, 33% said they would support secession, compared to just 15% of white adults. The more education a respondent had, the less likely they were to support secession – as 38% of those with less than a high school diploma would support it, compared to just 10% of those with a college degree.
To gauge the extent to which support for secession comes from a sense that the nation’s current system is not working, a separate question was asked about agreement that “the United States’ system is broken and cannot be fixed by traditional two-party politics and elections.” Nearly half of respondents agreed with this statement, with 27% who somewhat agree and 18% who strongly agree. [Emphasis mine]
The telephone poll, conducted by Zogby International, included 1,209 American adult respondents. It was conducted July 9-13, 2008, and carries a margin of error of +/- 2.9 per cent.
March 25, 2013
September 11, 2012
Basic Economics Follow-up
Wealth Follow-up
I had thought that this was obvious from the discussion on price and value, but an email query has disabused me of that.
Here’s why Quantitative Easing (QE), is destructive to ALL working class people.
The working class consists of those earning too much money ($€£¥$ CURRENCY $€£¥$) to be eligible for government assistance, and, too little to live off of either/or, or both of, capital gains, the proceeds of the sale of market securities, and distributed income, interest from bonds, dividends from stocks, payments from annuities, &c. Although The Federal Government has declared as officially poor a family of four earning ~$29,000.00, Missouri, as a random example, provides state funds for various subsistence programs if, as a family of four, your adjusted gross income (AGI – that is, after all deductions, allowances, and exceptions, the amount that you report on your 1040EZ as your income, and just to drive the point home, this is NOT your gross income!) is less than (<) $60,000.00. This means that if your AGI is $50,000,000,000.00, and you are living on your wages, maybe because you have not yet accumulated enough assets to live off of their proceeds, you are still a working class family!
The Political Class has determined that a family of four, or any sub-set thereof (meaning the “single mom” with child(ren), the “disabled +/or his care-taker”, the “elderly”, or those otherwise determined by the Political Aristocracy to, for any reason that the Aristocracy chooses, not be working – just consider the negative effect that extending “unemployment compensation” to 99 weeks had, especially now that it’s ending!) should have an AGI of $60,000.00, and if not, the working class should pay the difference through forced taxation.
Further, that that $60,000.00 fluctuate by an irrational COLA, a COLA, which the working class AGI does NOT have, with few exceptions.
Now, there are three references that you should review to get a more substantive understanding of what’s going on:
1. The Albany Plan Re-Visited, http://www.bn.com/ebooks, has several essays including two that are relevant. The first deals with government structure, and the second with how government taxes and spends;
2. The first section of the earlier post on education and entrepreneurship, because it touches on two relevant points, one dealing with economic growth, and the other with specific facets of business, more specifically organizational structure over time in job creation; &,
3. The original Wealth posting.
Here’s what happens with QE’s:
in order to maintain value, commodities owners always increase the price of their commodity when currency is de-valued. Two quick examples are OPEC and Market Exchange Indices.
As currency is de-valued, the price of commodity rises, but the value stays the same unless there is a technological change that alters the actual value of the commodity. The value of oil will go down if various technologies are developed that reduce its commercial uses, I use petroleum because there’s an earlier post on Energy which you should read as it contains most of petroleum’s commercial uses in it. Its value will go up, if technologies are developed that either enhance its use or create new uses for it, e.g. a petro-derivative that cures all cancers. (Although Keynesian Economists will argue that the quantity of the commodity is relevant to price/value, in fact, quantity effects innovation, not value. As the commercial uses of a commodity change, its value changes, however, if cost goes up, remember that cost is NOT price, an innovator will find a replacement for it!)
The value of a stock (let’s skip other market assets, without the proper background, the rules regarding mineral rights development limited partnership trusts, and other marketable financial instruments, are irrelevant), is based on the assets owned by the company AND its productivity, which is usually quick-referenced by its price to earnings ratio (P/E Ratio), which market chartists (those who analyze market values vs. market prices based upon price & volatility fluctuations,) assume includes management competence and other very important factors, but which in fact doesn’t. There is always the assumption that the currency used to state the p/e is both stable and relevant (for relevance, think back to when tobacco leaf was currency in the Colonies). When a QE is applied, there has been zero change in the assets and productivity of the company, just an increase in the paper currency suppy, which is a de-valuing or de-basing of the currency, thus the price goes up; thus, The Dow Jones Industrial Average, the NYSE Indices, The NASDAQ Index, and all of the SPDR Indices, keep going up, yet the economy keeps going down!
The poor have a cost of living adjustment built in to their assistance programs by law. The rich, since they own the assets and commodities, have a price-of-value built in by the market. The working class not only have neither of these, but they are forced to pay for both the rich and the poor because the earnings of working class people, as evidenced by purchasing power, or value of their labor, drops because, as is obvious to all of us, our earnings, which are usually expressed as wages, NOT compensation, do NOT go up, yet our costs do, and our taxes do!
So, when there is a QE, or a de-basing of the currency, the working class loses because the value of its labor as expressed by its AGI, i.e. its earnings, wages, or compensation, is reduced, yet we are required ab absolutum (sorry, I can think of no English word or phrase which carries the same emotional oppression of spirit and economic tyranny) to incease our productivity, yet we, the producers of it, receive nothing in return for this increase in WEALTH!!!
SO, ARE YOU RICH AT $5 OR $3?
– 86 –
September 7, 2012
Basic Economics for the Taxpayer – Consumer
Wealth = Productivity – Waste
Productivity = Available Labor X Available Resources
Waste = (100% < Effort) + (100% < Resource Use)
7 September 2012
Definitions:
wealth, Black’s Law Dictionary 9th Ed. 1730: 1. A large quantity of something, 2. The state of having abundant financial resources, affluence. Dictionary of Banking and Finance 3rd Ed. 377: (wealth tax), (a tax on) money, property or investments owned by a person.
productivity, Black’s no definition labor, Black’s 952, 1. Work of any type, including mental exertion * the term usually refers to work for wages as opposed to profits. 2. Workers considered as an economic unit or a political element, 3. A Spanish land measure equal to 177 1/7 acres. DB+F 273, the rate of output per employee or per machine in a factory.
waste, Black’s 1727 + 1728: Permanent harm to real property committed by a tenant to the prejudice of the heir, the reversioner, or the remainderman. (List of acts follows.) (List of specific types of waste follows.) DB+F 376: material left over from a production process which is of no value and is thrown away. To use more than is needed
Justplainbill’s definitions:
wealth: that which enhances the human condition beyond the necessary
productivity: human effort
waste: crime, inefficiency, negligence, incompetence; in the above equation, waste is actually the difference between 100% effort and that actually put forth; and it’s the same type of difference when figuring resource use
effort: total human involvement in the production process
Additional references: The works of James Q. Wilson, Ph. D.; The works of Thomas C. Sowell (pronounced soul) Ph. D.; The Albany Plan Re-Visited, www.bn.com/ebooks, & Ng’s coursera. (Jared Diamond’s book, Collapse is ok, too.) For the sake of brevity and carpal tunnel syndrome, the abbreviation T-C is being used to denote the long suffering Taxpayer-Consumer.
The current political climate has caused so much confusion regarding fair share, rich vs. poor, income gap, welfare & disability, and the social obligation of the wealthy, that some basic discussion has become necessary. The definitions that I’ve put up show the disparity between groups on what’s what, but almost all of the arguments made ignore the key ingredient in the creation of wealth: productive people.
Rather than repeat myself, at this point you should read the first section of the earlier posting on entrepreneurship and education where the basic point is made that man’s labor, both intellectual and physical, is necessary for raw material to be converted to a product or service that has value. The headlined equations are socio-legal, not mathematics or economics. These are the equations that taxpayers and consumers (T-C) should use when evaluating all situations requiring those decisions affecting our political community.
Fair Share, simply put, means that you receive in proportion to what you contributed. All else is coerced charity, and as such, is NOT a government function, but is, instead, theft. A good example of this is a few years ago in Missouri, there was a large enough surplus such that the legislature voted to return the excess to the taxpayer, if memory serves, like the Missouri Balanced Budget, because the Missouri Constitution requires it. Various civil rights groups, (isn’t it amazing how civil rights groups often conjures up thievery?) filed suit in federal court saying that the return of collected taxes to the taxpayers was unconstitutional because it meant that the colored would not be receiving their fair share of the money. Unlike subsequent federal rulings in Missouri, in this case the court ruled that you only got back if you put in, meaning, each taxpayer received his fair share of the excess collected taxes. Fair Share IS proportional, NOT absolute.
Income Gap has existed since before time, now, and will continue until the end of time, however, the concept that this is anything more than a minor statistic in certain economic theories, is a political trap to force guilt on the taxpayer in order to coerce charity through forced taxation. The concept of this gap being both eternal and universal is historically obvious. It shows up in The Bible, in Chinese literature from The Warring States period, in Pre-Columbian (before Columbus reached North America) Civilizations, in fact, in ALL cultures and societies. The points to be made here are that before The Industrial Revolution, the gap in terms of wealth was immensely greater than now. Some examples:
During the Diaspora in Egypt, a huge segment of Hebrews was held in slavery. 100% of their labor and their person was owned by Pharaoh. In Latinium, 100% of the labor of the slaves, plus their person, was owned by Roman Citizens. In the antebellum U.S., slaves were allowed in most states, to own property, and in fact, to work to a very limited degree, for themselves (with occasionally making enough to buy their freedom. Freehling’s Secession has some excellent in-context historical commentary on this). Prior to The Industrial Revolution, even though the income gap was huge, what you could buy was limited to food, clothing, shelter, and savings. There was nothing else to own! The purposes of Wealth Accumulation were limited to creating an inheritance, good health, and easing your work situation! Historically, just consider the condition of the French Peasant in 1790, and the Russian Serf in 1917, or for that matter, the East German Citizen in 1985 and the Chinese rice farmer in 2012, or heck, just about anybody in sub-Sahara Africa! So, how huge is the gap between Roman Slave and Roman Caesar, and how do you compare that with today’s arbitrarily proclaimed income gap?
All were subject to the same diseases, climate trauma, famines, old age, wars, &c.! Post-Industrial Revolution, the variety of goods and services available for purchase & use, is huge, and let us not forget that such services such as health care, are now among the benefits brought to us by that Industrial Revolution. So, what is now being speciously argued by this income gap is that the less productive are somehow entitled to goods and services that they cannot afford without charitable subsidy by the more productive. The fallacy with income gap is simply that there is so much to buy, and so much of it has been made “necessary”, that only the very rich can afford it all, yet, those at the poverty level, at least in the industrial countries, are well-to-do by all other standards.
[And, not to hurt your feelings in here, but as a matter of cold, hard fact, the disabled, the very young, and the elderly are not productive, that is, their activities, generally, are not contributing to the creation of Wealth – and, yes, the elderly buy goods & services, but they are using either savings or charity to pay for them. BTW, I give a greater share of my wealth to charity than, Obama, Biden, Kerry, &c., so please don’t send me emails about how these people should be taken care of. As a matter of economic fact, not emotion or socio-religious morality, the disabled, the young, and the elderly, are not productive members of society. Actually, if you wish to argue this, let’s start with how health-care is rationed in Europe, Asia, India, Africa, and South & Central America. The aforementioned three groups are excluded through rationing, of the tax supported health-care systems!]
Consider how many “poor” people have cell phones, cable, year-round housing, 100% access to health-care (and this pre-PPACA [Obama-Care], Patient Protection Affordable Care Act – and as an aside, prior to PPACA there was 100% access to health-care for every person, legal or not, walking within the U.S.A., including both free birth-control and pre & neo-natal care! Rather than enter into an argument here, just remember that during the 2008 Presidential Primary Cycle, Hon. Senator (NY) Hillary R. Clinton, Esq. (AR), made a big deal about it, pointing out that the, then current, situation was that although everyone had access, it was the hidden surcharge of $800 that each health insurance policy holder paid to cover those who did not have insurance, and she included those on Medicaid and Medicare in her computations!), school breakfasts and luncheons, paid education from K – 12, and even beyond with Pell Grants, accessibility to sub-prime student loans, scholarships, and even unqualified direct support from both public and private sources. So, how is that ‘poor’ to the point of justifying taking over 50% of my gross in taxation?
The availability of necessary products and services to those at the low end of the income gap is the same as that for those at the high end. The difference is in those goods beyond the minimum needed for good health and a basic education. Community basketball courts, “summer programs” for the poor, special +/or remedial courses, set-asides, &c., are in fact, waste, unless those accessing such charity perform some communal productive function, and even then, without 100% return on wealth, there’ll still be waste, but, it will be a socially acceptable waste, if the T-C has set the standard, one not arbitrarily set by politicians for the purpose of vote buying.
Bill Gates can buy a Ferretti Yacht; I cannot. The income gap between Bill Gates and me is huge and is based on his productive contribution to the global economy compared to mine. He’s earned his yacht, I have not. The gap factor between us is over 10,000X. Now, the gap factor between a person legally designated as poor by The Federal Government and me, is less than 4X, based on the federal standard of $27,000/yr. And, if the reporting on www.snopes.com is accurate, the complaint of the woman with the $10,000+ wall TV, receiving welfare & AFDC in New Orleans stating that after Katrina she wasn’t getting enough aid, is a showing of the uselessness of income gap as a factor in any reasonable decision making. The income gap between the middle class and the poor is less than a factor of 4.
Let’s cover the nomenclature of these groupings, too, while we’re here. When using income gap as a measure, Keynesians refer to the different groupings of poor, working poor, blue collar, lower middle class, white collar, upper middle class, lower upper class (aka nouveau riche) and upper class (old money). While “the name remains the same”, membership in these various classes, until recently, has been in constant flux with the two poor classes, and the blue collar class, shrinking, and all of the others increasing, as a percentage of the population. Lots of factors for this, but free market post industrialism, coupled to minimal reasonable government intervention, have made this so. Reaganomics and the silicone chip have made wealth creation less expensive, Clinton’s abuse of the Community Recovery Act (CRA), and his combine with Goldman Sachs and CitiGroup (Corzine, Weill & Co getting Glass-Steagall repealed, Clinton single handedly creating the sub-prime mortgage bubble – along with the corrupt political appointees at Fannie Mae & Freddie Mac; and before you say that it ain’t so, the historians are already reporting it as such, just read William D. Cohan’s House of Cards, as one of many already out there reporting this, Charlie Gasperino’s last two books give more insight to what went on, too. BTW, if you get FBN, Lou Dobb’s chalk talk on 6 September 2012, gives an almost adequate summary of this.), coupled to the Swiss, who, for the second time in 100 years, refusing to take US brokerage-house collateral for cash, (last time was 1929 – oh, you didn’t know that it was Swiss refusal to accept collateral that caused the 1929 Stock Market Crash and the ensuing depression? Well, now you do;) which caused the global financial collapse of 2008, since exacerbated by Bernanke & Co.’s release of paper into the system without the concomitant creation of the wealth necessary to give that paper value.
Price is different from Value, and in fact, not related to each other. Both are quantifiable and qualitative. Professor von Mises’ work Currency and Money explains this from the economist’s perspective, yet from the viewpoint of the consumer, two simpler examples show clearly the differences, and, yes, there are many differences but we usually only see one or two. Basically, price is an arbitrary number of a specific meaningless paper currency which a buyer and seller agree to trade for a desired product or service. This transaction need not, in fact rarely does, take place in a free and open market place. Empirically, I have yet to find an actual or reference to an actual, free and open market place. TANST (There Ain’t No Such Thing!)
It’s impossible for the T-C to know enough about any transaction or occurrence such that he can make the best/ most informed decision. This is primarily because T-C must work for a living, which means that T-C simply hasn’t got the time to get the necessarily extensive education nor the time necessary to gather enough data, to be able to make the best possible decision. However, T-C can acquire the necessary basics of things to make good guesses. Refer back to the Education & Entrepreneur posting for one acceptable and adequate methodology. Another would be to require test-able standards of all government positions, especially judicial and elected positions. The Albany Plan Re-Visited (www.bn.com/ebooks) has two approaches to this problem, neither perfect, but both are better than what we currently have.
Gold ore has zero value. Once processed into bullion or coin, it has both price and value. You can find the price of gold by googling it, getting The Wall Street Journal, or just by following most adequate News sources. Today, it’s about $1,700 a Troy Ounce, ten years ago it was about $800 tr/oz. Whether in 2002 or 2012, it’s still just one troy ounce of gold! Only the price has changed. Price has NO relationship to Value!
The value of gold, or any other product or service, is more than its purchasing power. Ok, where to go to learn about purchasing power? Best discussion that I’ve ever found is in Mark Twain’s A Connecticut Yankee in King Arthur’s Court. Go enjoy the good read. For those who want the quick reference, answer this question, who is richer: the man with $5, who must pay $5 for a loaf of bread, or the man with $3 who must pay $1 for a loaf of bread?
Value includes the satisfaction value, the aesthetic value, and the resultant, of the product or service. That Canadian Maple Leaf has more than 1 tr/oz. of gold in its value. It has the art work of the dye maker, the sweat of those who manufactured the gold, the distribution expense, the pleasure of the warmth of its glow and feel (only metal that I think actually feels warm; yes, I know that’s subjective, but I really do like gold), and the secure feeling that one gets knowing that this little coin has a future use directly related to my health & welfare! Think about it: how many people with their savings are purchasing gold and silver in the expectation that at some time in the future, they will be able to purchase food, water, shelter, clothing, and medical care? Remember the Weimar Republic and where that led the world! Will the pretty paper be able to do that?
So, what actually happens when Bernanke & Co. use quantitative easing? You’ve already got the necessary basics, price and value.
Yup, more paper, the same amount of gold, no increase in wealth.
Unless more gold is dug, processed, and manufactured, in which case, and you should refer back to the equations at the top of the page because that means: more wealth!
But there’s more. Because of Clinton’s repeal of Glass-Steagall, brokerage houses are now allowed to access the “cash window” at the Federal Reserve. Goldman-Sachs is not a bank in the traditional sense of holding consumers’ deposits and then loaning that money out. It is an investment bank, meaning that it deals in instruments of debt and equity. von Mises and Hazlett are good for all of the details, but the key for T-C is this, businesses use brokerage houses, consumers use banks; brokerage houses deal in stocks, bonds, letters of credit, DBO’s, CBO’s, Mutual Funds, &c., consumers deal with home mortgages, credit cards, auto, and appliance loans, i.e., personal financing including savings accounts, and checking accounts. (Yes, there are many individuals who deal directly with brokerages, but they are acting as businesses, not consumers, think about it, but you should be looking some of this stuff up in The Dictionary of Banking and Finance, or Black’s, and you really should own a current copy of each and update them every three years.) Because of the Crash of 1929, they were made separate and as such, not one of them became “too big to fail”, primarily because T-C’s money was kept separate from speculator’s money. Now consider what happened to the $1,600,000,000.00 of T-C’s money missing from MF Global, oh, BTW, that’s Corzine of Goldman-Sachs fame, that just got off Scott-free of all liability +/or responsibility for the T-C loss.
Accessing the cash window means that they can get tax dollar cash to finance leveraged purchasing of financial instruments. Think like this, it means that they don’t have to put up their own capital to buy/speculate in the markets; think the aforementioned MF Global. They get to use our money instead. It’s part of why the stock market keeps going up, think price increase, while the economy is so bad, think no change in value. Think why large companies are keeping cash on hand, trade in currencies because the price of other currencies is tied to the dollar, and small companies are losing ground, think steady value with no wealth increase. Think about the relationship between the currency number on your IRA or 401(k) and its actual value. You may have a large dollar amount, but to what value does that dollar amount relate? Think $5 vs. $3, which is what the big companies are thinking.
So, where are we? Y’all should now have enough knowledge to make rational decisions when people start talking to you about price and value. Y’all now have enough to know whether or not you’re better off now, four years ago, and you should be able to rationally speculate on how well you will be four years from now!
And better yet, you will be able to use this little bit anytime, anywhere, and anyplace that people try to talk to you about economics. Just keep in mind that there’s no correlation between price and value, and be able to answer the question of who’s richer, the man with $5 cash and $5 cost for a loaf of bread, or the man with $3 cash and $1 cost for a loaf of bread.
– 86 –
–
June 8, 2010
Title 8 USC/ Excerpts from The US Immigration Code
You’re looking for two things in this mess: first in Sec 1101 definitions; and two, in the last 20 pp what and who are illegals. The actual “laws” regarding them, are in the Code of Federal Regulations, or CFRs. Look there under 8 CFR. The quick take is: the AZ law is nothing compared to this stuff.
TITLE 8 > CHAPTER 12 > SUBCHAPTER I > § 1101
Prev | Next
§ 1101. Definitions
How Current is This?
(a) As used in this chapter—
(1) The term “administrator” means the official designated by the Secretary of State pursuant to section 1104 (b) of this title.
(2) The term “advocates” includes, but is not limited to, advises, recommends, furthers by overt act, and admits belief in.
(3) The term “alien” means any person not a citizen or national of the United States.
(4) The term “application for admission” has reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa.
(5) The term “Attorney General” means the Attorney General of the United States.
(6) The term “border crossing identification card” means a document of identity bearing that designation issued to an alien who is lawfully admitted for permanent residence, or to an alien who is a resident in foreign contiguous territory, by a consular officer or an immigration officer for the purpose of crossing over the borders between the United States and foreign contiguous territory in accordance with such conditions for its issuance and use as may be prescribed by regulations. Such regulations shall provide that
(A) each such document include a biometric identifier (such as the fingerprint or handprint of the alien) that is machine readable and
(B) an alien presenting a border crossing identification card is not permitted to cross over the border into the United States unless the biometric identifier contained on the card matches the appropriate biometric characteristic of the alien.
(7) The term “clerk of court” means a clerk of a naturalization court.
(8) The terms “Commissioner” and “Deputy Commissioner” mean the Commissioner of Immigration and Naturalization and a Deputy Commissioner of Immigration and Naturalization, respectively.
(9) The term “consular officer” means any consular, diplomatic, or other officer or employee of the United States designated under regulations prescribed under authority contained in this chapter, for the purpose of issuing immigrant or nonimmigrant visas or, when used in subchapter III of this chapter, for the purpose of adjudicating nationality.
(10) The term “crewman” means a person serving in any capacity on board a vessel or aircraft.
(11) The term “diplomatic visa” means a nonimmigrant visa bearing that title and issued to a nonimmigrant in accordance with such regulations as the Secretary of State may prescribe.
(12) The term “doctrine” includes, but is not limited to, policies, practices, purposes, aims, or procedures.
(13)
(A) The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
(B) An alien who is paroled under section 1182 (d)(5) of this title or permitted to land temporarily as an alien crewman shall not be considered to have been admitted.
(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings,
(v) has committed an offense identified in section 1182 (a)(2) of this title, unless since such offense the alien has been granted relief under section 1182 (h) or 1229b (a) of this title, or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.
(14) The term “foreign state” includes outlying possessions of a foreign state, but self-governing dominions or territories under mandate or trusteeship shall be regarded as separate foreign states.
(15) The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—
(A)
(i) an ambassador, public minister, or career diplomatic or consular officer who has been accredited by a foreign government, recognized de jure by the United States and who is accepted by the President or by the Secretary of State, and the members of the alien’s immediate family;
(ii) upon a basis of reciprocity, other officials and employees who have been accredited by a foreign government recognized de jure by the United States, who are accepted by the Secretary of State, and the members of their immediate families; and
(iii) upon a basis of reciprocity, attendants, servants, personal employees, and members of their immediate families, of the officials and employees who have a nonimmigrant status under (i) and (ii) above;
(B) an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure;
(C) an alien in immediate and continuous transit through the United States, or an alien who qualifies as a person entitled to pass in transit to and from the United Nations Headquarters District and foreign countries, under the provisions of paragraphs (3), (4), and (5) of section 11 of the Headquarters Agreement with the United Nations (61 Stat. 758);
(D)
(i) an alien crewman serving in good faith as such in a capacity required for normal operation and service on board a vessel, as defined in section 1288 (a) of this title (other than a fishing vessel having its home port or an operating base in the United States), or aircraft, who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft;
(ii) an alien crewman serving in good faith as such in any capacity required for normal operations and service aboard a fishing vessel having its home port or an operating base in the United States who intends to land temporarily in Guam or the Commonwealth of the Northern Mariana Islands and solely in pursuit of his calling as a crewman and to depart from Guam or the Commonwealth of the Northern Mariana Islands with the vessel on which he arrived;
(E) an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him;
(i) solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which he is a national;
(ii) solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital; or
(iii) solely to perform services in a specialty occupation in the United States if the alien is a national of the Commonwealth of Australia and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed with the Secretary of Labor an attestation under section 1182 (t)(1) of this title;
(F)
(i) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 1184 (l) [1] of this title at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States, particularly designated by him and approved by the Attorney General after consultation with the Secretary of Education, which institution or place of study shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn,
(ii) the alien spouse and minor children of any alien described in clause (i) if accompanying or following to join such an alien, and
(iii) an alien who is a national of Canada or Mexico, who maintains actual residence and place of abode in the country of nationality, who is described in clause (i) except that the alien’s qualifications for and actual course of study may be full or part-time, and who commutes to the United States institution or place of study from Canada or Mexico;
(G)
(i) a designated principal resident representative of a foreign government recognized de jure by the United States, which foreign government is a member of an international organization entitled to enjoy privileges, exemptions, and immunities as an international organization under the International Organizations Immunities Act (59 Stat. 669) [22 U.S.C. 288 et seq.], accredited resident members of the staff of such representatives, and members of his or their immediate family;
(ii) other accredited representatives of such a foreign government to such international organizations, and the members of their immediate families;
(iii) an alien able to qualify under (i) or (ii) above except for the fact that the government of which such alien is an accredited representative is not recognized de jure by the United States, or that the government of which he is an accredited representative is not a member of such international organization; and the members of his immediate family;
(iv) officers, or employees of such international organizations, and the members of their immediate families;
(v) attendants, servants, and personal employees of any such representative, officer, or employee, and the members of the immediate families of such attendants, servants, and personal employees;
(H) an alien (i) [(a) Repealed. Pub. L. 106–95, § 2(c), Nov. 12, 1999, 113 Stat. 1316] (b) subject to section 1182 (j)(2) of this title, who is coming temporarily to the United States to perform services (other than services described in subclause (a) during the period in which such subclause applies and other than services described in subclause (ii)(a) or in subparagraph (O) or (P)) in a specialty occupation described in section 1184 (i)(1) of this title or as a fashion model, who meets the requirements for the occupation specified in section 1184 (i)(2) of this title or, in the case of a fashion model, is of distinguished merit and ability, and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has filed with the Secretary an application under section 1182 (n)(1) of this title, or (b1) who is entitled to enter the United States under and in pursuance of the provisions of an agreement listed in section 1184 (g)(8)(A) of this title, who is engaged in a specialty occupation described in section 1184 (i)(3) of this title, and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed with the Secretary of Labor an attestation under section 1182 (t)(1) of this title, or (c) who is coming temporarily to the United States to perform services as a registered nurse, who meets the qualifications described in section 1182 (m)(1) of this title, and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that an unexpired attestation is on file and in effect under section 1182 (m)(2) of this title for the facility (as defined in section 1182 (m)(6) of this title) for which the alien will perform the services; or (ii)(a) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services, as defined by the Secretary of Labor in regulations and including agricultural labor defined in section 3121 (g) of title 26, agriculture as defined in section 203 (f) of title 29, and the pressing of apples for cider on a farm, of a temporary or seasonal nature, or (b) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country, but this clause shall not apply to graduates of medical schools coming to the United States to perform services as members of the medical profession; or (iii) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States as a trainee, other than to receive graduate medical education or training, in a training program that is not designed primarily to provide productive employment; and the alien spouse and minor children of any such alien specified in this paragraph if accompanying him or following to join him;
(I) upon a basis of reciprocity, an alien who is a bona fide representative of foreign press, radio, film, or other foreign information media, who seeks to enter the United States solely to engage in such vocation, and the spouse and children of such a representative, if accompanying or following to join him;
(J) an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training and who, if he is coming to the United States to participate in a program under which he will receive graduate medical education or training, also meets the requirements of section 1182 (j) of this title, and the alien spouse and minor children of any such alien if accompanying him or following to join him;
(K) subject to subsections (d) and (p) [2] of section 1184 of this title, an alien who—
(i) is the fiancee or fiance of a citizen of the United States (other than a citizen described in section 1154 (a)(1)(A)(viii)(I) of this title) and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission;
(ii) has concluded a valid marriage with a citizen of the United States (other than a citizen described in section 1154 (a)(1)(A)(viii)(I) of this title) who is the petitioner, is the beneficiary of a petition to accord a status under section 1151 (b)(2)(A)(i) of this title that was filed under section 1154 of this title by the petitioner, and seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa; or
(iii) is the minor child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien;
(L) subject to section 1184 (c)(2) of this title, an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him;
(M)
(i) an alien having a residence in a foreign country which he has no intention of abandoning who seeks to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an established vocational or other recognized nonacademic institution (other than in a language training program) in the United States particularly designated by him and approved by the Attorney General, after consultation with the Secretary of Education, which institution shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant nonacademic student and if any such institution fails to make reports promptly the approval shall be withdrawn,
(ii) the alien spouse and minor children of any alien described in clause (i) if accompanying or following to join such an alien, and
(iii) an alien who is a national of Canada or Mexico, who maintains actual residence and place of abode in the country of nationality, who is described in clause (i) except that the alien’s course of study may be full or part-time, and who commutes to the United States institution or place of study from Canada or Mexico;
(N)
(i) the parent of an alien accorded the status of special immigrant under paragraph (27)(I)(i) (or under analogous authority under paragraph (27)(L)), but only if and while the alien is a child, or
(ii) a child of such parent or of an alien accorded the status of a special immigrant under clause (ii), (iii), or (iv) of paragraph (27)(I) (or under analogous authority under paragraph (27)(L));
(O) an alien who—
(i) has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability; or
(ii)
(I) seeks to enter the United States temporarily and solely for the purpose of accompanying and assisting in the artistic or athletic performance by an alien who is admitted under clause (i) for a specific event or events,
(II) is an integral part of such actual performance,
(III)
(a) has critical skills and experience with such alien which are not of a general nature and which cannot be performed by other individuals, or
(b) in the case of a motion picture or television production, has skills and experience with such alien which are not of a general nature and which are critical either based on a pre-existing longstanding working relationship or, with respect to the specific production, because significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production, and
(IV) has a foreign residence which the alien has no intention of abandoning; or
(iii) is the alien spouse or child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien;
(P) an alien having a foreign residence which the alien has no intention of abandoning who—
(i)
(a) is described in section 1184 (c)(4)(A) of this title (relating to athletes), or
(b) is described in section 1184 (c)(4)(B) of this title (relating to entertainment groups);
(ii)
(I) performs as an artist or entertainer, individually or as part of a group, or is an integral part of the performance of such a group, and
(II) seeks to enter the United States temporarily and solely for the purpose of performing as such an artist or entertainer or with such a group under a reciprocal exchange program which is between an organization or organizations in the United States and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers;
(iii)
(I) performs as an artist or entertainer, individually or as part of a group, or is an integral part of the performance of such a group, and
(II) seeks to enter the United States temporarily and solely to perform, teach, or coach as such an artist or entertainer or with such a group under a commercial or noncommercial program that is culturally unique; or
(iv) is the spouse or child of an alien described in clause (i), (ii), or (iii) and is accompanying, or following to join, the alien;
(Q) an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily (for a period not to exceed 15 months) to the United States as a participant in an international cultural exchange program approved by the Secretary of Homeland Security for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien’s nationality and who will be employed under the same wages and working conditions as domestic workers;
(R) an alien, and the spouse and children of the alien if accompanying or following to join the alien, who—
(i) for the 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; and
(ii) seeks to enter the United States for a period not to exceed 5 years to perform the work described in subclause (I), (II), or (III) of paragraph (27)(C)(ii);
(S) subject to section 1184 (k) of this title, an alien—
(i) who the Attorney General determines—
(I) is in possession of critical reliable information concerning a criminal organization or enterprise;
(II) is willing to supply or has supplied such information to Federal or State law enforcement authorities or a Federal or State court; and
(III) whose presence in the United States the Attorney General determines is essential to the success of an authorized criminal investigation or the successful prosecution of an individual involved in the criminal organization or enterprise; or
(ii) who the Secretary of State and the Attorney General jointly determine—
(I) is in possession of critical reliable information concerning a terrorist organization, enterprise, or operation;
(II) is willing to supply or has supplied such information to Federal law enforcement authorities or a Federal court;
(III) will be or has been placed in danger as a result of providing such information; and
(IV) is eligible to receive a reward under section 2708 (a) of title 22,
(T)
and, if the Attorney General (or with respect to clause (ii), the Secretary of State and the Attorney General jointly) considers it to be appropriate, the spouse, married and unmarried sons and daughters, and parents of an alien described in clause (i) or (ii) if accompanying, or following to join, the alien;
(i) subject to section 1184 (o) of this title, an alien who the Secretary of Homeland Security, or in the case of subclause (III)(aa) the Secretary of Homeland Security, in consultation with the Attorney General, determines—
(I) is or has been a victim of a severe form of trafficking in persons, as defined in section 7102 of title 22;
(II) is physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry thereto, on account of such trafficking, including physical presence on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking;
(III)
(aa) has complied with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking or the investigation of crime where acts of trafficking are at least one central reason for the commission of that crime;
(bb) in consultation with the Attorney General, as appropriate, is unable to cooperate with a request described in item (aa) due to physical or psychological trauma; or
(cc) has not attained 18 years of age; and
(IV) the alien [3] would suffer extreme hardship involving unusual and severe harm upon removal; and
(ii) if accompanying, or following to join, the alien described in clause (i)—
(I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien;
(II) in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien; or
(III) any parent or unmarried sibling under 18 years of age of an alien described in subclause (I) or (II) who the Secretary of Homeland Security, in consultation with the law enforcement officer investigating a severe form of trafficking, determines faces a present danger of retaliation as a result of the alien’s escape from the severe form of trafficking or cooperation with law enforcement.
(U)
(i) subject to section 1184 (p) of this title, an alien who files a petition for status under this subparagraph, if the Secretary of Homeland Security determines that—
(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);
(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);
(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and
(IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States;
(ii) if accompanying, or following to join, the alien described in clause (i)—
(I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; or
(II) in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien; and
(iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes; or
(V) subject to section 1184 (q) of this title, an alien who is the beneficiary (including a child of the principal alien, if eligible to receive a visa under section 1153 (d) of this title) of a petition to accord a status under section 1153 (a)(2)(A) of this title that was filed with the Attorney General under section 1154 of this title on or before December 21, 2000, if—
(i) such petition has been pending for 3 years or more; or
(ii) such petition has been approved, 3 years or more have elapsed since such filing date, and—
(I) an immigrant visa is not immediately available to the alien because of a waiting list of applicants for visas under section 1153 (a)(2)(A) of this title; or
(II) the alien’s application for an immigrant visa, or the alien’s application for adjustment of status under section 1255 of this title, pursuant to the approval of such petition, remains pending.
(16) The term “immigrant visa” means an immigrant visa required by this chapter and properly issued by a consular officer at his office outside of the United States to an eligible immigrant under the provisions of this chapter.
(17) The term “immigration laws” includes this chapter and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens.
(18) The term “immigration officer” means any employee or class of employees of the Service or of the United States designated by the Attorney General, individually or by regulation, to perform the functions of an immigration officer specified by this chapter or any section of this title.
(19) The term “ineligible to citizenship,” when used in reference to any individual, means, notwithstanding the provisions of any treaty relating to military service, an individual who is, or was at any time permanently debarred from becoming a citizen of the United States under section 3(a) of the Selective Training and Service Act of 1940, as amended (54 Stat. 885; 55 Stat. 844), or under section 4(a) of the Selective Service Act of 1948, as amended (62 Stat. 605; 65 Stat. 76) [50 App. U.S.C. 454 (a)], or under any section of this chapter, or any other Act, or under any law amendatory of, supplementary to, or in substitution for, any of such sections or Acts.
(20) The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.
(21) The term “national” means a person owing permanent allegiance to a state.
(22) The term “national of the United States” means
(A) a citizen of the United States, or
(B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.
(23) The term “naturalization” means the conferring of nationality of a state upon a person after birth, by any means whatsoever.
(24) Repealed. Pub. L. 102–232, title III, § 305(m)(1), Dec. 12, 1991, 105 Stat. 1750.
(25) The term “noncombatant service” shall not include service in which the individual is not subject to military discipline, court martial, or does not wear the uniform of any branch of the armed forces.
(26) The term “nonimmigrant visa” means a visa properly issued to an alien as an eligible nonimmigrant by a competent officer as provided in this chapter.
(27) The term “special immigrant” means—
(A) an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad;
(B) an immigrant who was a citizen of the United States and may, under section 1435 (a) or 1438 of this title, apply for reacquisition of citizenship;
(C) an immigrant, and the immigrant’s spouse and children if accompanying or following to join the immigrant, who—
(i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States;
(ii) seeks to enter the United States—
(I) solely for the purpose of carrying on the vocation of a minister of that religious denomination,
(II) before September 30, 2012, in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or
(III) before September 30, 2012, in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501 (c)(3) of title 26) at the request of the organization in a religious vocation or occupation; and
(iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (i);
(D) an immigrant who is an employee, or an honorably retired former employee, of the United States Government abroad, or of the American Institute in Taiwan, and who has performed faithful service for a total of fifteen years, or more, and his accompanying spouse and children: Provided, That the principal officer of a Foreign Service establishment (or, in the case of the American Institute in Taiwan, the Director thereof), in his discretion, shall have recommended the granting of special immigrant status to such alien in exceptional circumstances and the Secretary of State approves such recommendation and finds that it is in the national interest to grant such status;
(E) an immigrant, and his accompanying spouse and children, who is or has been an employee of the Panama Canal Company or Canal Zone Government before the date on which the Panama Canal Treaty of 1977 (as described in section 3602 (a)(1) of title 22) enters into force [October 1, 1979], who was resident in the Canal Zone on the effective date of the exchange of instruments of ratification of such Treaty [April 1, 1979], and who has performed faithful service as such an employee for one year or more;
(F) an immigrant, and his accompanying spouse and children, who is a Panamanian national and
(i) who, before the date on which such Panama Canal Treaty of 1977 enters into force [October 1, 1979], has been honorably retired from United States Government employment in the Canal Zone with a total of 15 years or more of faithful service, or
(ii) who, on the date on which such Treaty enters into force, has been employed by the United States Government in the Canal Zone with a total of 15 years or more of faithful service and who subsequently is honorably retired from such employment or continues to be employed by the United States Government in an area of the former Canal Zone;
(G) an immigrant, and his accompanying spouse and children, who was an employee of the Panama Canal Company or Canal Zone Government on the effective date of the exchange of instruments of ratification of such Panama Canal Treaty of 1977 [April 1, 1979], who has performed faithful service for five years or more as such an employee, and whose personal safety, or the personal safety of whose spouse or children, as a direct result of such Treaty, is reasonably placed in danger because of the special nature of any of that employment;
(H) an immigrant, and his accompanying spouse and children, who—
(i) has graduated from a medical school or has qualified to practice medicine in a foreign state,
(ii) 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,
(iii) entered the United States as a nonimmigrant under subsection (a)(15)(H) or (a)(15)(J) of this section before January 10, 1978, and
(iv) has been continuously present in the United States in the practice or study of medicine since the date of such entry;
(I)
(i) an immigrant who is the unmarried son or daughter of an officer or employee, or of a former officer or employee, of an international organization described in paragraph (15)(G)(i), and who
(I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv) or paragraph (15)(N), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a status under this subparagraph and for a period or periods aggregating at least seven years between the ages of five and 21 years, and
(II) applies for a visa or adjustment of status under this subparagraph no later than his twenty-fifth birthday or six months after October 24, 1988, whichever is later;
(ii) an immigrant who is the surviving spouse of a deceased officer or employee of such an international organization, and who
(I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv) or paragraph (15)(N), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a status under this subparagraph and for a period or periods aggregating at least 15 years before the date of the death of such officer or employee, and
(II) files a petition for status under this subparagraph no later than six months after the date of such death or six months after October 24, 1988, whichever is later;
(iii) an immigrant who is a retired officer or employee of such an international organization, and who
(I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a status under this subparagraph and for a period or periods aggregating at least 15 years before the date of the officer or employee’s retirement from any such international organization, and
(II) files a petition for status under this subparagraph no later than six months after the date of such retirement or six months after October 25, 1994, whichever is later; or
(iv) an immigrant who is the spouse of a retired officer or employee accorded the status of special immigrant under clause (iii), accompanying or following to join such retired officer or employee as a member of his immediate family;
(J) an immigrant who is present in the United States—
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that—
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and
(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter;
(K) an immigrant who has served honorably on active duty in the Armed Forces of the United States after October 15, 1978, and after original lawful enlistment outside the United States (under a treaty or agreement in effect on October 1, 1991) for a period or periods aggregating—
(i) 12 years and who, if separated from such service, was never separated except under honorable conditions, or
(ii) 6 years, in the case of an immigrant who is on active duty at the time of seeking special immigrant status under this subparagraph and who has reenlisted to incur a total active duty service obligation of at least 12 years,
and the spouse or child of any such immigrant if accompanying or following to join the immigrant, but only if the executive department under which the immigrant serves or served recommends the granting of special immigrant status to the immigrant;
(L) an immigrant who would be described in clause (i), (ii), (iii), or (iv) of subparagraph (I) if any reference in such a clause—
(i) to an international organization described in paragraph (15)(G)(i) were treated as a reference to the North Atlantic Treaty Organization (NATO);
(ii) to a nonimmigrant under paragraph (15)(G)(iv) were treated as a reference to a nonimmigrant classifiable under NATO–6 (as a member of a civilian component accompanying a force entering in accordance with the provisions of the NATO Status-of-Forces Agreement, a member of a civilian component attached to or employed by an Allied Headquarters under the “Protocol on the Status of International Military Headquarters” set up pursuant to the North Atlantic Treaty, or as a dependent); and
(iii) to the Immigration Technical Corrections Act of 1988 or to the Immigration and Nationality Technical Corrections Act of 1994 were a reference to the American Competitiveness and Workforce Improvement Act of 1998 [4]
(M) subject to the numerical limitations of section 1153 (b)(4) of this title, an immigrant who seeks to enter the United States to work as a broadcaster in the United States for the International Broadcasting Bureau of the Broadcasting Board of Governors, or for a grantee of the Broadcasting Board of Governors, and the immigrant’s accompanying spouse and children.
(28) The term “organization” means, but is not limited to, an organization, corporation, company, partnership, association, trust, foundation or fund; and includes a group of persons, whether or not incorporated, permanently or temporarily associated together with joint action on any subject or subjects.
(29) The term “outlying possessions of the United States” means American Samoa and Swains Island.
(30) The term “passport” means any travel document issued by competent authority showing the bearer’s origin, identity, and nationality if any, which is valid for the admission of the bearer into a foreign country.
(31) The term “permanent” means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.
(32) The term “profession” shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.
(33) The term “residence” means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.
(34) The term “Service” means the Immigration and Naturalization Service of the Department of Justice.
(35) The term “spouse”, “wife”, or “husband” do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.
(36) The term “State” includes the District of Columbia, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.
(37) The term “totalitarian party” means an organization which advocates the establishment in the United States of a totalitarian dictatorship or totalitarianism. The terms “totalitarian dictatorship” and “totalitarianism” mean and refer to systems of government not representative in fact, characterized by
(A) the existence of a single political party, organized on a dictatorial basis, with so close an identity between such party and its policies and the governmental policies of the country in which it exists, that the party and the government constitute an indistinguishable unit, and
(B) the forcible suppression of opposition to such party.
(38) The term “United States”, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.
(39) The term “unmarried”, when used in reference to any individual as of any time, means an individual who at such time is not married, whether or not previously married.
(40) The term “world communism” means a revolutionary movement, the purpose of which is to establish eventually a Communist totalitarian dictatorship in any or all the countries of the world through the medium of an internationally coordinated Communist political movement.
(41) The term “graduates of a medical school” means aliens who have graduated from a medical school or who have qualified to practice medicine in a foreign state, other than such aliens who are of national or international renown in the field of medicine.
(42) The term “refugee” means
(A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or
(B) in such special circumstances as the President after appropriate consultation (as defined in section 1157 (e) of this title) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
(43) The term “aggravated felony” means—
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924 (c) of title 18);
(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(E) an offense described in—
(i) section 842 (h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);
(ii) section 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924 (b) or (h) of title 18 (relating to firearms offenses); or
(iii) section 5861 of title 26 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at [5] least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at [5] least one year;
(H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography);
(J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(K) an offense that—
(i) relates to the owning, controlling, managing, or supervising of a prostitution business;
(ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or
(iii) is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in—
(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18;
(ii) section 421 of title 50 (relating to protecting the identity of undercover intelligence agents); or
(iii) section 421 of title 50 (relating to protecting the identity of undercover agents);
(M) an offense that—
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324 (a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter [6]
(O) an offense described in section 1325 (a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense
(i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and
(ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.
The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.
(44)
(A) The term “managerial capacity” means an assignment within an organization in which the employee primarily—
(i) manages the organization, or a department, subdivision, function, or component of the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
(B) The term “executive capacity” means an assignment within an organization in which the employee primarily—
(i) directs the management of the organization or a major component or function of the organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
(C) If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.
(45) The term “substantial” means, for purposes of paragraph (15)(E) with reference to trade or capital, such an amount of trade or capital as is established by the Secretary of State, after consultation with appropriate agencies of Government.
(46) The term “extraordinary ability” means, for purposes of subsection (a)(15)(O)(i) of this section, in the case of the arts, distinction.
(47)
(A) The term “order of deportation” means the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation.
(B) The order described under subparagraph (A) shall become final upon the earlier of—
(i) a determination by the Board of Immigration Appeals affirming such order; or
(ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.
(48)
(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.
(49) The term “stowaway” means any alien who obtains transportation without the consent of the owner, charterer, master or person in command of any vessel or aircraft through concealment aboard such vessel or aircraft. A passenger who boards with a valid ticket is not to be considered a stowaway.
(50) The term “intended spouse” means any alien who meets the criteria set forth in section 1154 (a)(1)(A)(iii)(II)(aa)(BB), 1154 (a)(1)(B)(ii)(II)(aa)(BB), or 1229b (b)(2)(A)(i)(III) of this title.
(51) The term “VAWA self-petitioner” means an alien, or a child of the alien, who qualifies for relief under—
(A) clause (iii), (iv), or (vii) of section 1154 (a)(1)(A) of this title;
(B) clause (ii) or (iii) of section 1154 (a)(1)(B) of this title;
(C) section 1186a (c)(4)(C) of this title;
(D) the first section of Public Law 89–732 (8 U.S.C. 1255 note ) (commonly known as the Cuban Adjustment Act) as a child or spouse who has been battered or subjected to extreme cruelty;
(E) section 902(d)(1)(B) of the Haitian Refugee Immigration Fairness Act of 1998 (8 U.S.C. 1255 note );
(F) section 202(d)(1) of the Nicaraguan Adjustment and Central American Relief Act; or
(G) section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208).
(b) As used in subchapters I and II of this chapter—
(1) The term “child” means an unmarried person under twenty-one years of age who is—
(A) a child born in wedlock;
(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;
(C) a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;
(D) a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;
(E)
(i) a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or
(ii) subject to the same proviso as in clause (i), a child who:
(I) is a natural sibling of a child described in clause (i) or subparagraph (F)(i);
(II) was adopted by the adoptive parent or parents of the sibling described in such clause or subparagraph; and
(III) is otherwise described in clause (i), except that the child was adopted while under the age of 18 years;
(F)
(i) a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151 (b) of this title, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child’s proposed residence; Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or
(ii) subject to the same provisos as in clause (i), a child who:
(I) is a natural sibling of a child described in clause (i) or subparagraph (E)(i);
(II) has been adopted abroad, or is coming to the United States for adoption, by the adoptive parent (or prospective adoptive parent) or parents of the sibling described in such clause or subparagraph; and
(III) is otherwise described in clause (i), except that the child is under the age of 18 at the time a petition is filed in his or her behalf to accord a classification as an immediate relative under section 1151 (b) of this title; or
(G) a child, under the age of sixteen at the time a petition is filed on the child’s behalf to accord a classification as an immediate relative under section 1151 (b) of this title, who has been adopted in a foreign state that is a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption done at The Hague on May 29, 1993, or who is emigrating from such a foreign state to be adopted in the United States, by a United States citizen and spouse jointly, or by an unmarried United States citizen at least 25 years of age—
(i) if—
(I) the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States;
(II) the child’s natural parents (or parent, in the case of a child who has one sole or surviving parent because of the death or disappearance of, abandonment or desertion by, the other parent), or other persons or institutions that retain legal custody of the child, have freely given their written irrevocable consent to the termination of their legal relationship with the child, and to the child’s emigration and adoption;
(III) in the case of a child having two living natural parents, the natural parents are incapable of providing proper care for the child;
(IV) the Attorney General is satisfied that the purpose of the adoption is to form a bona fide parent-child relationship, and the parent-child relationship of the child and the natural parents has been terminated (and in carrying out both obligations under this subclause the Attorney General may consider whether there is a petition pending to confer immigrant status on one or both of such natural parents); and
(V) in the case of a child who has not been adopted—
(aa) the competent authority of the foreign state has approved the child’s emigration to the United States for the purpose of adoption by the prospective adoptive parent or parents; and
(bb) the prospective adoptive parent or parents has or have complied with any pre-adoption requirements of the child’s proposed residence; and
(ii) except that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.
(2) The terms “parent”, “father”, or “mother” mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in subdivision (1) of this subsection, except that, for purposes of paragraph (1)(F) (other than the second proviso therein) and paragraph (1)(G)(i) in the case of a child born out of wedlock described in paragraph (1)(D) (and not described in paragraph (1)(C)), the term “parent” does not include the natural father of the child if the father has disappeared or abandoned or deserted the child or if the father has in writing irrevocably released the child for emigration and adoption.
(3) The term “person” means an individual or an organization.
(4) The term “immigration judge” means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.
(5) The term “adjacent islands” includes Saint Pierre, Miquelon, Cuba, the Dominican Republic, Haiti, Bermuda, the Bahamas, Barbados, Jamaica, the Windward and Leeward Islands, Trinidad, Martinique, and other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea.
(c) As used in subchapter III of this chapter—
(1) The term “child” means an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere, and, except as otherwise provided in sections 1431 and 1432 [7] of this title, a child adopted in the United States, if such legitimation or adoption takes place before the child reaches the age of 16 years (except to the extent that the child is described in subparagraph (E)(ii) or (F)(ii) of subsection (b)(1) of this section), and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.
(2) The terms “parent”, “father”, and “mother” include in the case of a posthumous child a deceased parent, father, and mother.
(d) Repealed. Pub. L. 100–525, § 9(a)(3), Oct. 24, 1988, 102 Stat. 2619.
(e) For the purposes of this chapter—
(1) The giving, loaning, or promising of support or of money or any other thing of value to be used for advocating any doctrine shall constitute the advocating of such doctrine; but nothing in this paragraph shall be construed as an exclusive definition of advocating.
(2) The giving, loaning, or promising of support or of money or any other thing of value for any purpose to any organization shall be presumed to constitute affiliation therewith; but nothing in this paragraph shall be construed as an exclusive definition of affiliation.
(3) Advocating the economic, international, and governmental doctrines of world communism means advocating the establishment of a totalitarian Communist dictatorship in any or all of the countries of the world through the medium of an internationally coordinated Communist movement.
(f) For the purposes of this chapter—
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was—
(1) a habitual drunkard;
(2) Repealed. Pub. L. 97–116, § 2(c)(1), Dec. 29, 1981, 95 Stat. 1611.
(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (10)(A) of section 1182 (a) of this title; or subparagraphs (A) and (B) of section 1182 (a)(2) of this title and subparagraph (C) thereof of such section [8] (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;
(4) one whose income is derived principally from illegal gambling activities;
(5) one who has been convicted of two or more gambling offenses committed during such period;
(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;
(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;
(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section); or
(9) one who at any time has engaged in conduct described in section 1182 (a)(3)(E) of this title (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 1182(a)(2)(G) of this title (relating to severe violations of religious freedom).
The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be made based on it.
(g) For the purposes of this chapter any alien ordered deported or removed (whether before or after the enactment of this chapter) who has left the United States, shall be considered to have been deported or removed in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed.
(h) For purposes of section 1182 (a)(2)(E) of this title, the term “serious criminal offense” means—
(1) any felony;
(2) any crime of violence, as defined in section 16 of title 18; or
(3) any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another.
(i) With respect to each nonimmigrant alien described in subsection (a)(15)(T)(i) of this section—
(1) the Secretary of Homeland Security, the Attorney General, and other Government officials, where appropriate, shall provide the alien with a referral to a nongovernmental organization that would advise the alien regarding the alien’s options while in the United States and the resources available to the alien; and
(2) the Secretary of Homeland Security shall, during the period the alien is in lawful temporary resident status under that subsection, grant the alien authorization to engage in employment in the United States and provide the alien with an “employment authorized” endorsement or other appropriate work permit.
________________________________________
[1] See References in Text note below.
[2] See References in Text note below.
[3] So in original. The words “the alien” probably should not appear.
[4] So in original. Probably should be or”. followed by “;
[5] So in original. Probably should be preceded by “is”.
[6] So in original. Probably should be followed by a semicolon.
[7] See References in Text note below.
[8] So in original. The phrase “of such section” probably should not appear.
TITLE 8 > CHAPTER 12 > SUBCHAPTER I > § 1103
Prev | Next
§ 1103. Powers and duties of the Secretary, the Under Secretary, and the Attorney General
How Current is This?
(a) Secretary of Homeland Security
(1) The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.
(2) He shall have control, direction, and supervision of all employees and of all the files and records of the Service.
(3) He shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.
(4) He may require or authorize any employee of the Service or the Department of Justice to perform or exercise any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon any other employee of the Service.
(5) He shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens and shall, in his discretion, appoint for that purpose such number of employees of the Service as to him shall appear necessary and proper.
(6) He is authorized to confer or impose upon any employee of the United States, with the consent of the head of the Department or other independent establishment under whose jurisdiction the employee is serving, any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon officers or employees of the Service.
(7) He may, with the concurrence of the Secretary of State, establish offices of the Service in foreign countries; and, after consultation with the Secretary of State, he may, whenever in his judgment such action may be necessary to accomplish the purposes of this chapter, detail employees of the Service for duty in foreign countries.
(8) After consultation with the Secretary of State, the Attorney General may authorize officers of a foreign country to be stationed at preclearance facilities in the United States for the purpose of ensuring that persons traveling from or through the United States to that foreign country comply with that country’s immigration and related laws.
(9) Those officers may exercise such authority and perform such duties as United States immigration officers are authorized to exercise and perform in that foreign country under reciprocal agreement, and they shall enjoy such reasonable privileges and immunities necessary for the performance of their duties as the government of their country extends to United States immigration officers.
(10) In the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize any State or local law enforcement officer, with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving, to perform or exercise any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon officers or employees of the Service.
(11) The Attorney General, in support of persons in administrative detention in non-Federal institutions, is authorized—
(A) to make payments from funds appropriated for the administration and enforcement of the laws relating to immigration, naturalization, and alien registration for necessary clothing, medical care, necessary guard hire, and the housing, care, and security of persons detained by the Service pursuant to Federal law under an agreement with a State or political subdivision of a State; and
(B) to enter into a cooperative agreement with any State, territory, or political subdivision thereof, for the necessary construction, physical renovation, acquisition of equipment, supplies or materials required to establish acceptable conditions of confinement and detention services in any State or unit of local government which agrees to provide guaranteed bed space for persons detained by the Service.
(b) Land acquisition authority
(1) The Attorney General may contract for or buy any interest in land, including temporary use rights, adjacent to or in the vicinity of an international land border when the Attorney General deems the land essential to control and guard the boundaries and borders of the United States against any violation of this chapter.
(2) The Attorney General may contract for or buy any interest in land identified pursuant to paragraph (1) as soon as the lawful owner of that interest fixes a price for it and the Attorney General considers that price to be reasonable.
(3) When the Attorney General and the lawful owner of an interest identified pursuant to paragraph (1) are unable to agree upon a reasonable price, the Attorney General may commence condemnation proceedings pursuant to section 3113 of title 40.
(4) The Attorney General may accept for the United States a gift of any interest in land identified pursuant to paragraph (1).
(c) Commissioner; appointment
The Commissioner shall be a citizen of the United States and shall be appointed by the President, by and with the advice and consent of the Senate. He shall be charged with any and all responsibilities and authority in the administration of the Service and of this chapter which are conferred upon the Attorney General as may be delegated to him by the Attorney General or which may be prescribed by the Attorney General. The Commissioner may enter into cooperative agreements with State and local law enforcement agencies for the purpose of assisting in the enforcement of the immigration laws.
(d) Statistical information system
(1) The Commissioner, in consultation with interested academicians, government agencies, and other parties, shall provide for a system for collection and dissemination, to Congress and the public, of information (not in individually identifiable form) useful in evaluating the social, economic, environmental, and demographic impact of immigration laws.
(2) Such information shall include information on the alien population in the United States, on the rates of naturalization and emigration of resident aliens, on aliens who have been admitted, paroled, or granted asylum, on nonimmigrants in the United States (by occupation, basis for admission, and duration of stay), on aliens who have not been admitted or have been removed from the United States, on the number of applications filed and granted for cancellation of removal, and on the number of aliens estimated to be present unlawfully in the United States in each fiscal year.
(3) Such system shall provide for the collection and dissemination of such information not less often than annually.
(e) Annual report
(1) The Commissioner shall submit to Congress annually a report which contains a summary of the information collected under subsection (d) of this section and an analysis of trends in immigration and naturalization.
(2) Each annual report shall include information on the number, and rate of denial administratively, of applications for naturalization, for each district office of the Service and by national origin group.
(f) Minimum number of agents in States
The Attorney General shall allocate to each State not fewer than 10 full-time active duty agents of the Immigration and Naturalization Service to carry out the functions of the Service, in order to ensure the effective enforcement of this chapter.
(g) Attorney General
(1) In general
The Attorney General shall have such authorities and functions under this chapter and all other laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review, on the day before the effective date of the Immigration Reform, Accountability and Security Enhancement Act of 2002.
(2) Powers
The Attorney General shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.
Ask A Lawyer Online. Get an Answer ASAP!
TITLE 8 > CHAPTER 12 > SUBCHAPTER I > § 1105
Prev | Next
§ 1105. Liaison with internal security officers; data exchange
How Current is This?
(a) In general
The Commissioner and the Administrator shall have authority to maintain direct and continuous liaison with the Directors of the Federal Bureau of Investigation and the Central Intelligence Agency and with other internal security officers of the Government for the purpose of obtaining and exchanging information for use in enforcing the provisions of this chapter in the interest of the internal and border security of the United States. The Commissioner and the Administrator shall maintain direct and continuous liaison with each other with a view to a coordinated, uniform, and efficient administration of this chapter, and all other immigration and nationality laws.
(b) Access to National Crime Information Center files
(1) The Attorney General and the Director of the Federal Bureau of Investigation shall provide the Department of State and the Service access to the criminal history record information contained in the National Crime Information Center’s Interstate Identification Index (NCIC-III), Wanted Persons File, and to any other files maintained by the National Crime Information Center that may be mutually agreed upon by the Attorney General and the agency receiving the access, for the purpose of determining whether or not a visa applicant or applicant for admission has a criminal history record indexed in any such file.
(2) Such access shall be provided by means of extracts of the records for placement in the automated visa lookout or other appropriate database, and shall be provided without any fee or charge.
(3) The Federal Bureau of Investigation shall provide periodic updates of the extracts at intervals mutually agreed upon with the agency receiving the access. Upon receipt of such updated extracts, the receiving agency shall make corresponding updates to its database and destroy previously provided extracts.
(4) Access to an extract does not entitle the Department of State to obtain the full content of the corresponding automated criminal history record. To obtain the full content of a criminal history record, the Department of State shall submit the applicant’s fingerprints and any appropriate fingerprint processing fee authorized by law to the Criminal Justice Information Services Division of the Federal Bureau of Investigation.
(c) Reconsideration upon development of more cost effective means of sharing information
The provision of the extracts described in subsection (b) of this section may be reconsidered by the Attorney General and the receiving agency upon the development and deployment of a more cost-effective and efficient means of sharing the information.
(d) Regulations
For purposes of administering this section, the Department of State shall, prior to receiving access to NCIC data but not later than 4 months after October 26, 2001, promulgate final regulations—
(1) to implement procedures for the taking of fingerprints; and
(2) to establish the conditions for the use of the information received from the Federal Bureau of Investigation, in order—
(A) to limit the redissemination of such information;
(B) to ensure that such information is used solely to determine whether or not to issue a visa to an alien or to admit an alien to the United States;
(C) to ensure the security, confidentiality, and destruction of such information; and
(D) to protect any privacy rights of individuals who are subjects of such information.
Ask A Lawyer Online. Get an Answer ASAP!
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part II > § 1182
Prev | Next
§ 1182. Inadmissible aliens
How Current is This?
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(1) Health-related grounds
(A) In general
Any alien—
(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance; [1]
(ii) except as provided in subparagraph (C), who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices,
(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)—
(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or
(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or
(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict,
is inadmissible.
(B) Waiver authorized
For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g) of this section.
(C) Exception from immunization requirement for adopted children 10 years of age or younger
Clause (ii) of subparagraph (A) shall not apply to a child who—
(i) is 10 years of age or younger,
(ii) is described in section 1101 (b)(1)(F) of this title, and
(iii) is seeking an immigrant visa as an immediate relative under section 1151 (b) of this title,
if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child’s admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph.
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),
is inadmissible.
(ii) Exception Clause (i)(I) shall not apply to an alien who committed only one crime if—
(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
(B) Multiple criminal convictions
Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.
(C) Controlled substance traffickers
Any alien who the consular officer or the Attorney General knows or has reason to believe—
(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity,
is inadmissible.
(D) Prostitution and commercialized vice
Any alien who—
(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,
(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or
(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution,
is inadmissible.
(E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution
Any alien—
(i) who has committed in the United States at any time a serious criminal offense (as defined in section 1101 (h) of this title),
(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,
(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and
(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense,
is inadmissible.
(F) Waiver authorized
For provision authorizing waiver of certain subparagraphs of this paragraph, see subsection (h) of this section.
(G) Foreign government officials who have committed particularly severe violations of religious freedom
Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined in section 6402 of title 22, is inadmissible.
(H) Significant traffickers in persons
(i) In general Any alien who commits or conspires to commit human trafficking offenses in the United States or outside the United States, or who the consular officer, the Secretary of Homeland Security, the Secretary of State, or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in the section 7102 of title 22, is inadmissible.
(ii) Beneficiaries of trafficking Except as provided in clause (iii), any alien who the consular officer or the Attorney General knows or has reason to believe is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible.
(iii) Exception for certain sons and daughters Clause (ii) shall not apply to a son or daughter who was a child at the time he or she received the benefit described in such clause.
(I) Money laundering
Any alien—
(i) who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or seeks to enter the United States to engage, in an offense which is described in section 1956 or 1957 of title 18 (relating to laundering of monetary instruments); or
(ii) who a consular officer or the Attorney General knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in an offense which is described in such section;
is inadmissible.
(3) Security and related grounds
(A) In general
Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in—
(i) any activity
(I) to violate any law of the United States relating to espionage or sabotage or
(II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means,
is inadmissible.
(B) Terrorist activities
(i) In general Any alien who—
(I) has engaged in a terrorist activity;
(II) a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv));
(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity;
(IV) is a representative (as defined in clause (v)) of—
(aa) a terrorist organization (as defined in clause (vi)); or
(bb) a political, social, or other group that endorses or espouses terrorist activity;
(V) is a member of a terrorist organization described in subclause (I) or (II) of clause (vi);
(VI) is a member of a terrorist organization described in clause (vi)(III), unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization;
(VII) endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;
(VIII) has received military-type training (as defined in section 2339D (c)(1) of title 18) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in clause (vi)); or
(IX) is the spouse or child of an alien who is inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years,
is inadmissible. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.
(ii) Exception Subclause (IX) of clause (i) does not apply to a spouse or child—
(I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or
(II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.
(iii) “Terrorist activity” defined As used in this chapter, the term “terrorist activity” means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:
(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
(III) A violent attack upon an internationally protected person (as defined in section 1116 (b)(4) of title 18) or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any—
(a) biological agent, chemical agent, or nuclear weapon or device, or
(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain),
with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.
(VI) A threat, attempt, or conspiracy to do any of the foregoing.
(iv) “Engage in terrorist activity” defined As used in this chapter, the term “engage in terrorist activity” means, in an individual capacity or as a member of an organization—
(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;
(II) to prepare or plan a terrorist activity;
(III) to gather information on potential targets for terrorist activity;
(IV) to solicit funds or other things of value for—
(aa) a terrorist activity;
(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization;
(V) to solicit any individual—
(aa) to engage in conduct otherwise described in this subsection;
(bb) for membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc) for membership in a terrorist organization described in clause (vi)(III) unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization; or
(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training—
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or
(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.
(v) “Representative” defined As used in this paragraph, the term “representative” includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.
(vi) “Terrorist organization” defined As used in this section, the term “terrorist organization” means an organization—
(I) designated under section 1189 of this title;
(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in the activities described in subclauses (I) through (VI) of clause (iv); or
(III) that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).
(C) Foreign policy
(i) In general An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.
(ii) Exception for officials An alien who is an official of a foreign government or a purported government, or who is a candidate for election to a foreign government office during the period immediately preceding the election for that office, shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) solely because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.
(iii) Exception for other aliens An alien, not described in clause (ii), shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.
(iv) Notification of determinations If a determination is made under clause (iii) with respect to an alien, the Secretary of State must notify on a timely basis the chairmen of the Committees on the Judiciary and Foreign Affairs of the House of Representatives and of the Committees on the Judiciary and Foreign Relations of the Senate of the identity of the alien and the reasons for the determination.
(D) Immigrant membership in totalitarian party
(i) In general Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.
(ii) Exception for involuntary membership Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.
(iii) Exception for past membership Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that—
(I) the membership or affiliation terminated at least—
(a) 2 years before the date of such application, or
(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 persecution, genocide, or the commission of any act of torture or extrajudicial killing
(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 inadmissible.
(ii) Participation in genocide Any alien who ordered, incited, assisted, or otherwise participated in genocide, as defined in section 1091 (a) of title 18, is inadmissible.
(iii) Commission of acts of torture or extrajudicial killings Any alien who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in the commission of—
(I) any act of torture, as defined in section 2340 of title 18; or
(II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note ),
is inadmissible.
(F) Association with terrorist organizations
Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.
(G) Recruitment or use of child soldiers
Any alien who has engaged in the recruitment or use of child soldiers in violation of section 2442 of title 18 is inadmissible.
(4) Public charge
(A) In general
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 inadmissible.
(B) Factors to be taken into account
(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s—
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial status; and
(V) education and skills.
(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under section 1183a of this title for purposes of exclusion under this paragraph.
(C) Family-sponsored immigrants
Any alien who seeks admission or adjustment of status under a visa number issued under section 1151 (b)(2) or 1153 (a) of this title is inadmissible under this paragraph unless—
(i) the alien has obtained—
(I) status as a spouse or a child of a United States citizen pursuant to clause (ii), (iii), or (iv) of section 1154 (a)(1)(A) of this title;
(II) classification pursuant to clause (ii) or (iii) of section 1154 (a)(1)(B) of this title; or
(III) classification or status as a VAWA self-petitioner; or
(ii) the person petitioning for the alien’s admission (and any additional sponsor required under section 1183a (f) of this title or any alternative sponsor permitted under paragraph (5)(B) of such section) has executed an affidavit of support described in section 1183a of this title with respect to such alien.
(D) Certain employment-based immigrants
Any alien who seeks admission or adjustment of status under a visa number issued under section 1153 (b) of this title by virtue of a classification petition filed by a relative of the alien (or by an entity in which such relative has a significant ownership interest) is inadmissible under this paragraph unless such relative has executed an affidavit of support described in section 1183a of this title with respect to such alien.
(5) Labor certification and qualifications for certain immigrants
(A) Labor certification
(i) In general Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, 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.
(iii) Professional athletes
(I) In general A certification made under clause (i) with respect to a professional athlete shall remain valid with respect to the athlete after the athlete changes employer, if the new employer is a team in the same sport as the team which employed the athlete when the athlete first applied for the certification.
(II) “Professional athlete” defined For purposes of subclause (I), the term “professional athlete” means an individual who is employed as an athlete by—
(aa) a team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or
(bb) any minor league team that is affiliated with such an association.
(iv) Long delayed adjustment applicants A certification made under clause (i) with respect to an individual whose petition is covered by section 1154 (j) of this title shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.
(B) Unqualified physicians
An alien 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 inadmissible, 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.
(C) Uncertified foreign health-care workers
Subject to subsection (r) of this section, any alien who seeks to enter the United States for the purpose of performing labor as a health-care worker, other than a physician, is inadmissible unless the alien presents to the consular officer, or, in the case of an adjustment of status, the Attorney General, a certificate from the Commission on Graduates of Foreign Nursing Schools, or a certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services, verifying that—
(i) the alien’s education, training, license, and experience—
(I) meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application;
(II) are comparable with that required for an American health-care worker of the same type; and
(III) are authentic and, in the case of a license, unencumbered;
(ii) the alien has the level of competence in oral and written English considered by the Secretary of Health and Human Services, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant’s ability to speak and write; and
(iii) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting the success on the profession’s licensing or certification examination, the alien has passed such a test or has passed such an examination.
For purposes of clause (ii), determination of the standardized tests required and of the minimum scores that are appropriate are within the sole discretion of the Secretary of Health and Human Services and are not subject to further administrative or judicial review.
(D) Application of grounds
The grounds for inadmissibility of aliens under subparagraphs (A) and (B) shall apply to immigrants seeking admission or adjustment of status under paragraph (2) or (3) of section 1153 (b) of this title.
(6) Illegal entrants and immigration violators
(A) Aliens present without admission or parole
(i) In general An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
(ii) Exception for certain battered women and children Clause (i) shall not apply to an alien who demonstrates that—
(I) the alien is a VAWA self-petitioner;
(II)
(a) the alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the spouse’s or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, or (b) the alien’s child has been battered or subjected to extreme cruelty by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty) or by a member of the spouse’s or parent’s family residing in the same household as the alien when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, and
(III) there was a substantial connection between the battery or cruelty described in subclause (I) or (II) and the alien’s unlawful entry into the United States.
(B) Failure to attend removal proceeding
Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.
(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 admission into the United States or other benefit provided under this chapter is inadmissible.
(ii) Falsely claiming citizenship
(I) In general Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.
(II) Exception In the case of an alien making a representation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.
(iii) Waiver authorized For provision authorizing waiver of clause (i), see subsection (i) of this section.
(D) Stowaways
Any alien who is a stowaway is inadmissible.
(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 inadmissible.
(ii) 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 section 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 1153 (a)(2) of this title (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) of this section.
(F) Subject of civil penalty
(i) In general An alien who is the subject of a final order for violation of section 1324c of this title is inadmissible.
(ii) Waiver authorized For provision authorizing waiver of clause (i), see subsection (d)(12) of this section.
(G) Student visa abusers
An alien who obtains the status of a nonimmigrant under section 1101 (a)(15)(F)(i) of this title and who violates a term or condition of such status under section 1184 (l) [2] of this title is inadmissible until the alien has been outside the United States for a continuous period of 5 years after the date of the violation.
(7) Documentation requirements
(A) Immigrants
(i) In general Except as otherwise specifically provided in this chapter, 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 chapter, 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 1181 (a) of this title, or
(II) whose visa has been issued without compliance with the provisions of section 1153 of this title,
is inadmissible.
(ii) Waiver authorized For provision authorizing waiver of clause (i), see subsection (k) of this section.
(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 inadmissible.
(ii) General waiver authorized For provision authorizing waiver of clause (i), see subsection (d)(4) of this section.
(iii) Guam and Northern Mariana Islands visa waiver For provision authorizing waiver of clause (i) in the case of visitors to Guam or the Commonwealth of the Northern Mariana Islands, see subsection (l).
(iv) Visa waiver program For authority to waive the requirement of clause (i) under a program, see section 1187 of this title.
(8) Ineligible for citizenship
(A) In general
Any immigrant who is permanently ineligible to citizenship is inadmissible.
(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 inadmissible, 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) Aliens previously removed
(A) Certain aliens previously removed
(i) Arriving aliens Any alien who has been ordered removed under section 1225 (b)(1) of this title or at the end of proceedings under section 1229a of this title initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.
(ii) Other aliens Any alien not described in clause (i) who—
(I) has been ordered removed under section 1229a of this title or any other provision of law, or
(II) departed the United States while an order of removal was outstanding,
and who seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.
(iii) Exception Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of 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) Aliens unlawfully present
(i) In general Any alien (other than an alien lawfully admitted for permanent residence) who—
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a (e) [3] of this title) prior to the commencement of proceedings under section 1225 (b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien’s departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States,
is inadmissible.
(ii) Construction of unlawful presence For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.
(iii) Exceptions
(I) Minors No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i).
(II) Asylees No period of time in which an alien has a bona fide application for asylum pending under section 1158 of this title shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.
(III) Family unity No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (i).
(IV) Battered women and children Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if “violation of the terms of the alien’s nonimmigrant visa” were substituted for “unlawful entry into the United States” in subclause (III) of that paragraph.
(V) Victims of a severe form of trafficking in persons Clause (i) shall not apply to an alien who demonstrates that the severe form of trafficking (as that term is defined in section 7102 of title 22) was at least one central reason for the alien’s unlawful presence in the United States.
(iv) Tolling for good cause In the case of an alien who—
(I) has been lawfully admitted or paroled into the United States,
(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and
(III) has not been employed without authorization in the United States before or during the pendency of such application,
the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.
(v) Waiver The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.
(C) Aliens unlawfully present after previous immigration violations
(i) In general Any alien who—
(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or
(II) has been ordered removed under section 1225 (b)(1) of this title, section 1229a of this title, or any other provision of law,
and who enters or attempts to reenter the United States without being admitted is inadmissible.
(ii) Exception Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien’s reapplying for admission.
(iii) Waiver The Secretary of Homeland Security may waive the application of clause (i) in the case of an alien who is a VAWA self-petitioner if there is a connection between—
(I) the alien’s battering or subjection to extreme cruelty; and
(II) the alien’s removal, departure from the United States, reentry or reentries into the United States; or attempted reentry into the United States.
(10) Miscellaneous
(A) Practicing polygamists
Any immigrant who is coming to the United States to practice polygamy is inadmissible.
(B) Guardian required to accompany helpless alien
Any alien—
(i) who is accompanying another alien who is inadmissible and who is certified to be helpless from sickness, mental or physical disability, or infancy pursuant to section 1222 (c) of this title, and
(ii) whose protection or guardianship is determined to be required by the alien described in clause (i),
is inadmissible.
(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 inadmissible until the child is surrendered to the person granted custody by that order.
(ii) Aliens supporting abductors and relatives of abductors Any alien who—
(I) is known by the Secretary of State to have intentionally assisted an alien in the conduct described in clause (i),
(II) is known by the Secretary of State to be intentionally providing material support or safe haven to an alien described in clause (i), or
(III) is a spouse (other than the spouse who is the parent of the abducted child), child (other than the abducted child), parent, sibling, or agent of an alien described in clause (i), if such person has been designated by the Secretary of State at the Secretary’s sole and unreviewable discretion, is inadmissible until the child described in clause (i) is surrendered to the person granted custody by the order described in that clause, and such person and child are permitted to return to the United States or such person’s place of residence.
(iii) Exceptions Clauses (i) and (ii) shall not apply—
(I) to a government official of the United States who is acting within the scope of his or her official duties;
(II) to a government official of any foreign government if the official has been designated by the Secretary of State at the Secretary’s sole and unreviewable discretion; or
(III) so long as the child is located in a foreign state that is a party to the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980.
(D) Unlawful voters
(i) In general Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is inadmissible.
(ii) Exception In the case of an alien who voted in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such violation.
(E) Former citizens who renounced citizenship to avoid taxation
Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is inadmissible.
(b) Notices of denials
(1) Subject to paragraphs (2) and (3), 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 inadmissible under subsection (a) of this section, the officer shall provide the alien with a timely written notice that—
(A) states the determination, and
(B) lists the specific provision or provisions of law under which the alien is inadmissible or adjustment [4] of status.
(2) The Secretary of State may waive the requirements of paragraph (1) with respect to a particular alien or any class or classes of inadmissible aliens.
(3) Paragraph (1) does not apply to any alien inadmissible under paragraph (2) or (3) of subsection (a) of this section.
(c) Repealed. Pub. L. 104–208, div. C, title III, § 304(b), Sept. 30, 1996, 110 Stat. 3009–597
(d) Temporary admission of nonimmigrants
(1) The Attorney General shall determine whether a ground for inadmissibility exists with respect to a nonimmigrant described in section 1101 (a)(15)(S) of this title. The Attorney General, in the Attorney General’s discretion, may waive the application of subsection (a) of this section (other than paragraph (3)(E)) in the case of a nonimmigrant described in section 1101 (a)(15)(S) of this title, if the Attorney General considers it to be in the national interest to do so. Nothing in this section shall be regarded as prohibiting the Immigration and Naturalization Service from instituting removal proceedings against an alien admitted as a nonimmigrant under section 1101 (a)(15)(S) of this title for conduct committed after the alien’s admission into the United States, or for conduct or a condition that was not disclosed to the Attorney General prior to the alien’s admission as a nonimmigrant under section 1101 (a)(15)(S) of this title.
(2) Repealed. Pub. L. 101–649, title VI, § 601(d)(2)(A), Nov. 29, 1990, 104 Stat. 5076.
(3)
(A) Except as provided in this subsection, an alien
(i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) of this section (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or
(ii) who is inadmissible under subsection (a) of this section (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.
(B)
(i) The Secretary of State, after consultation with the Attorney General and the Secretary of Homeland Security, or the Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, may determine in such Secretary’s sole unreviewable discretion that subsection (a)(3)(B) shall not apply with respect to an alien within the scope of that subsection or that subsection (a)(3)(B)(vi)(III) shall not apply to a group within the scope of that subsection, except that no such waiver may be extended to an alien who is within the scope of subsection (a)(3)(B)(i)(II), no such waiver may be extended to an alien who is a member or representative of, has voluntarily and knowingly engaged in or endorsed or espoused or persuaded others to endorse or espouse or support terrorist activity on behalf of, or has voluntarily and knowingly received military-type training from a terrorist organization that is described in subclause (I) or (II) of subsection (a)(3)(B)(vi), and no such waiver may be extended to a group that has engaged terrorist activity against the United States or another democratic country or that has purposefully engaged in a pattern or practice of terrorist activity that is directed at civilians. Such a determination shall neither prejudice the ability of the United States Government to commence criminal or civil proceedings involving a beneficiary of such a determination or any other person, nor create any substantive or procedural right or benefit for a beneficiary of such a determination or any other person. Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review such a determination or revocation except in a proceeding for review of a final order of removal pursuant to section 1252 of this title, and review shall be limited to the extent provided in section 1252 (a)(2)(D). The Secretary of State may not exercise the discretion provided in this clause with respect to an alien at any time during which the alien is the subject of pending removal proceedings under section 1229a of this title.
(ii) Not later than 90 days after the end of each fiscal year, the Secretary of State and the Secretary of Homeland Security shall each provide to the Committees on the Judiciary of the House of Representatives and of the Senate, the Committee on International Relations of the House of Representatives, the Committee on Foreign Relations of the Senate, and the Committee on Homeland Security of the House of Representatives a report on the aliens to whom such Secretary has applied clause (i). Within one week of applying clause (i) to a group, the Secretary of State or the Secretary of Homeland Security shall provide a report to such Committees.
(4) Either or both of the requirements of paragraph (7)(B)(i) of subsection (a) of this section may be waived by the Attorney General and the Secretary of State acting jointly
(A) on the basis of unforeseen emergency in individual cases, or
(B) on the basis of reciprocity with respect to nationals of foreign contiguous territory or of adjacent islands and residents thereof having a common nationality with such nationals, or
(C) in the case of aliens proceeding in immediate and continuous transit through the United States under contracts authorized in section 1223 (c) of this title.
(5)
(A) The Attorney General may, except as provided in subparagraph (B) or in section 1184 (f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
(B) The Attorney General may not parole into the United States an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee under section 1157 of this title.
(6) Repealed. Pub. L. 101–649, title VI, § 601(d)(2)(A), Nov. 29, 1990, 104 Stat. 5076.
(7) The provisions of subsection (a) of this section (other than paragraph (7)) shall be applicable to any alien who shall leave Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico, or the Virgin Islands of the United States, and who seeks to enter the continental United States or any other place under the jurisdiction of the United States. The Attorney General shall by regulations provide a method and procedure for the temporary admission to the United States of the aliens described in this proviso.[5] Any alien described in this paragraph, who is denied admission to the United States, shall be immediately removed in the manner provided by section 1231 (c) of this title.
(8) Upon a basis of reciprocity accredited officials of foreign governments, their immediate families, attendants, servants, and personal employees may be admitted in immediate and continuous transit through the United States without regard to the provisions of this section except paragraphs (3)(A), (3)(B), (3)(C), and (7)(B) of subsection (a) of this section.
(9) , (10) Repealed. Pub. L. 101–649, title VI, § 601(d)(2)(A), Nov. 29, 1990, 104 Stat. 5076.
(11) The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection (a)(6)(E) of this section in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who is otherwise admissible to the United States as a returning resident under section 1181 (b) of this title 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), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.
(12) The Attorney General may, in the discretion of the Attorney General for humanitarian purposes or to assure family unity, waive application of clause (i) of subsection (a)(6)(F) of this section—
(A) in the case of an alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation or removal and who is otherwise admissible to the United States as a returning resident under section 1181 (b) of this title, and
(B) in the case of an alien seeking admission or adjustment of status under section 1151 (b)(2)(A) of this title or under section 1153 (a) of this title,
if no previous civil money penalty was imposed against the alien under section 1324c of this title and the offense was committed solely to assist, aid, or support the alien’s spouse or child (and not another individual). No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this paragraph.
(13)
(A) The Secretary of Homeland Security shall determine whether a ground for inadmissibility exists with respect to a nonimmigrant described in section 1101 (a)(15)(T) of this title, except that the ground for inadmissibility described in subsection (a)(4) of this section shall not apply with respect to such a nonimmigrant.
(B) In addition to any other waiver that may be available under this section, in the case of a nonimmigrant described in section 1101 (a)(15)(T) of this title, if the Secretary of Homeland Security considers it to be in the national interest to do so, the Secretary of Homeland Security, in the Attorney General’s [6] discretion, may waive the application of—
(i) subsection (a)(1) of this section; and
(ii) any other provision of subsection (a) of this section (excluding paragraphs (3), (4), (10)(C), and (10(E)) [7] if the activities rendering the alien inadmissible under the provision were caused by, or were incident to, the victimization described in section 1101 (a)(15)(T)(i)(I) of this title.
(14) The Secretary of Homeland Security shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in section 1101 (a)(15)(U) of this title. The Secretary of Homeland Security, in the Attorney General’s [6] discretion, may waive the application of subsection (a) of this section (other than paragraph (3)(E)) in the case of a nonimmigrant described in section 1101 (a)(15)(U) of this title, if the Secretary of Homeland Security considers it to be in the public or national interest to do so.
(e) Educational visitor status; foreign residence requirement; waiver
No person admitted under section 1101 (a)(15)(J) of this title or acquiring such status after admission
(i) whose participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the Government of the United States or by the government of the country of his nationality or his last residence,
(ii) who at the time of admission or acquisition of status under section 1101 (a)(15)(J) of this title was a national or resident of a country which the Director of the United States Information Agency, pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged, or
(iii) who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 1101 (a)(15)(H) or section 1101 (a)(15)(L) of this title until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of at least two years following departure from the United States: Provided, That upon the favorable recommendation of the Director, pursuant to the request of an interested United States Government agency (or, in the case of an alien described in clause (iii), pursuant to the request of a State Department of Public Health, or its equivalent), or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien’s spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion, the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, or in the case of a waiver requested by an interested United States Government agency on behalf of an alien described in clause (iii), the waiver shall be subject to the requirements of section 1184 (l) of this title: And provided further, That, except in the case of an alien described in clause (iii), the Attorney General may, upon the favorable recommendation of the Director, waive such two-year foreign residence requirement in any case in which the foreign country of the alien’s nationality or last residence has furnished the Director a statement in writing that it has no objection to such waiver in the case of such alien.
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
(g) Bond and conditions for admission of alien inadmissible on health-related grounds
The Attorney General may waive the application of—
(1) subsection (a)(1)(A)(i) in the case of any alien who—
(A) is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa,
(B) has a son or daughter who is a United States citizen, or an alien lawfully admitted for permanent residence, or an alien who has been issued an immigrant visa; or
(C) is a VAWA self-petitioner,
in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in the discretion of the Attorney General after consultation with the Secretary of Health and Human Services, may by regulation prescribe;
(2) subsection (a)(1)(A)(ii) of this section in the case of any alien—
(A) who receives vaccination against the vaccine-preventable disease or diseases for which the alien has failed to present documentation of previous vaccination,
(B) for whom a civil surgeon, medical officer, or panel physician (as those terms are defined by section 34.2 of title 42 of the Code of Federal Regulations) certifies, according to such regulations as the Secretary of Health and Human Services may prescribe, that such vaccination would not be medically appropriate, or
(C) under such circumstances as the Attorney General provides by regulation, with respect to whom the requirement of such a vaccination would be contrary to the alien’s religious beliefs or moral convictions; or
(3) subsection (a)(1)(A)(iii) of this section in the case of any alien, in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in the discretion of the Attorney General after consultation with the Secretary of Health and Human Services, may by regulation prescribe.
(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)
The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) of this section and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if—
(1)
(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that—
(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status,
(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.
No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.
(i) Admission of immigrant inadmissible for fraud or willful misrepresentation of material fact
(1) The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) of this section in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien or, in the case of a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien or the alien’s United States citizen, lawful permanent resident, or qualified alien parent or child.
(2) No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph (1).
(j) Limitation on immigration of foreign medical graduates
(1) The additional requirements referred to in section 1101 (a)(15)(J) of this title for an alien who is coming to the United States under a program under which he will receive graduate medical education or training are as follows:
(A) A school of medicine or of one of the other health professions, which is accredited by a body or bodies approved for the purpose by the Secretary of Education, has agreed in writing to provide the graduate medical education or training under the program for which the alien is coming to the United States or to assume responsibility for arranging for the provision thereof by an appropriate public or nonprofit private institution or agency, except that, in the case of such an agreement by a school of medicine, any one or more of its affiliated hospitals which are to participate in the provision of the graduate medical education or training must join in the agreement.
(B) Before making such agreement, the accredited school has been satisfied that the alien
(i) is a graduate of a school of medicine which is 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); or
(ii)
(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),
(II) has competency in oral and written English,
(III) will be able to adapt to the educational and cultural environment in which he will be receiving his education or training, and
(IV) has adequate prior education and training to participate satisfactorily in the program for which he is coming to the United States. For the purposes of this subparagraph, 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 examination 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.
(C) The alien has made a commitment to return to the country of his nationality or last residence upon completion of the education or training for which he is coming to the United States, and the government of the country of his nationality or last residence has provided a written assurance, satisfactory to the Secretary of Health and Human Services, that there is a need in that country for persons with the skills the alien will acquire in such education or training.
(D) The duration of the alien’s participation in the program of graduate medical education or training for which the alien is coming to the United States is limited to the time typically required to complete such program, as determined by the Director of the United States Information Agency at the time of the alien’s admission into the United States, based on criteria which are established in coordination with the Secretary of Health and Human Services and which take into consideration the published requirements of the medical specialty board which administers such education or training program; except that—
(i) such duration is further limited to seven years unless the alien has demonstrated to the satisfaction of the Director that the country to which the alien will return at the end of such specialty education or training has an exceptional need for an individual trained in such specialty, and
(ii) the alien may, once and not later than two years after the date the alien is admitted to the United States as an exchange visitor or acquires exchange visitor status, change the alien’s designated program of graduate medical education or training if the Director approves the change and if a commitment and written assurance with respect to the alien’s new program have been provided in accordance with subparagraph (C).
(E) The alien furnishes the Attorney General each year with an affidavit (in such form as the Attorney General shall prescribe) that attests that the alien
(i) is in good standing in the program of graduate medical education or training in which the alien is participating, and
(ii) will return to the country of his nationality or last residence upon completion of the education or training for which he came to the United States.
(2) An alien who is a graduate of a medical school and who is coming to the United States to perform services as a member of the medical profession may not be admitted as a nonimmigrant under section 1101 (a)(15)(H)(i)(b) of this title unless—
(A) the alien is coming pursuant to an invitation from a public or nonprofit private educational or research institution or agency in the United States to teach or conduct research, or both, at or for such institution or agency, or
(B)
(i) the alien has passed the Federation licensing examination (administered by the Federation of State Medical Boards of the United States) or an equivalent examination as determined by the Secretary of Health and Human Services, and
(ii)
(I) has competency in oral and written English or
(II) is a graduate of a school of medicine which is 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).
(3) Omitted.
(k) Attorney General’s discretion to admit otherwise inadmissible aliens who possess immigrant visas
Any alien, inadmissible from the United States under paragraph (5)(A) or (7)(A)(i) of subsection (a) of this section, who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission.
(l) Guam and Northern Mariana Islands visa waiver program
(1) In general
The requirement of subsection (a)(7)(B)(i) may be waived by the Secretary of Homeland Security, in the case of an alien applying for admission as a nonimmigrant visitor for business or pleasure and solely for entry into and stay in Guam or the Commonwealth of the Northern Mariana Islands for a period not to exceed 45 days, if the Secretary of Homeland Security, after consultation with the Secretary of the Interior, the Secretary of State, the Governor of Guam and the Governor of the Commonwealth of the Northern Mariana Islands, determines that—
(A) an adequate arrival and departure control system has been developed in Guam and the Commonwealth of the Northern Mariana Islands; and
(B) such a waiver does not represent a threat to the welfare, safety, or security of the United States or its territories and commonwealths.
(2) Alien waiver of rights
An alien may not be provided a waiver under this subsection unless the alien has waived any right—
(A) to review or appeal under this chapter an immigration officer’s determination as to the admissibility of the alien at the port of entry into Guam or the Commonwealth of the Northern Mariana Islands; or
(B) to contest, other than on the basis of an application for withholding of removal under section 1231 (b)(3) of this title or under the Convention Against Torture, or an application for asylum if permitted under section 1158 of this title, any action for removal of the alien.
(3) Regulations
All necessary regulations to implement this subsection shall be promulgated by the Secretary of Homeland Security, in consultation with the Secretary of the Interior and the Secretary of State, on or before the 180th day after May 8, 2008. The promulgation of such regulations shall be considered a foreign affairs function for purposes of section 553 (a) of title 5. At a minimum, such regulations should include, but not necessarily be limited to—
(A) a listing of all countries whose nationals may obtain the waiver also provided by this subsection, except that such regulations shall provide for a listing of any country from which the Commonwealth has received a significant economic benefit from the number of visitors for pleasure within the one-year period preceding May 8, 2008, unless the Secretary of Homeland Security determines that such country’s inclusion on such list would represent a threat to the welfare, safety, or security of the United States or its territories; and
(B) any bonding requirements for nationals of some or all of those countries who may present an increased risk of overstays or other potential problems, if different from such requirements otherwise provided by law for nonimmigrant visitors.
(4) Factors
In determining whether to grant or continue providing the waiver under this subsection to nationals of any country, the Secretary of Homeland Security, in consultation with the Secretary of the Interior and the Secretary of State, shall consider all factors that the Secretary deems relevant, including electronic travel authorizations, procedures for reporting lost and stolen passports, repatriation of aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit systems, and information exchange.
(5) Suspension
The Secretary of Homeland Security shall monitor the admission of nonimmigrant visitors to Guam and the Commonwealth of the Northern Mariana Islands under this subsection. If the Secretary determines that such admissions have resulted in an unacceptable number of visitors from a country remaining unlawfully in Guam or the Commonwealth of the Northern Mariana Islands, unlawfully obtaining entry to other parts of the United States, or seeking withholding of removal or asylum, or that visitors from a country pose a risk to law enforcement or security interests of Guam or the Commonwealth of the Northern Mariana Islands or of the United States (including the interest in the enforcement of the immigration laws of the United States), the Secretary shall suspend the admission of nationals of such country under this subsection. The Secretary of Homeland Security may in the Secretary’s discretion suspend the Guam and Northern Mariana Islands visa waiver program at any time, on a country-by-country basis, for other good cause.
(6) Addition of countries
The Governor of Guam and the Governor of the Commonwealth of the Northern Mariana Islands may request the Secretary of the Interior and the Secretary of Homeland Security to add a particular country to the list of countries whose nationals may obtain the waiver provided by this subsection, and the Secretary of Homeland Security may grant such request after consultation with the Secretary of the Interior and the Secretary of State, and may promulgate regulations with respect to the inclusion of that country and any special requirements the Secretary of Homeland Security, in the Secretary’s sole discretion, may impose prior to allowing nationals of that country to obtain the waiver provided by this subsection.
(m) Requirements for admission of nonimmigrant nurses
(1) The qualifications referred to in section 1101 (a)(15)(H)(i)(c) of this title, with respect to an alien who is coming to the United States to perform nursing services for a facility, are that the alien—
(A) has obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained nursing education or has received nursing education in the United States;
(B) has passed an appropriate examination (recognized in regulations promulgated in consultation with the Secretary of Health and Human Services) or has a full and unrestricted license under State law to practice professional nursing in the State of intended employment; and
(C) is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States and is authorized under such laws to be employed by the facility.
(2)
(A) The attestation referred to in section 1101 (a)(15)(H)(i)(c) of this title, with respect to a facility for which an alien will perform services, is an attestation as to the following:
(i) The facility meets all the requirements of paragraph (6).
(ii) The employment of the alien will not adversely affect the wages and working conditions of registered nurses similarly employed.
(iii) The alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility.
(iv) The facility has taken and is taking timely and significant steps designed to recruit and retain sufficient registered nurses who are United States citizens or immigrants who are authorized to perform nursing services, in order to remove as quickly as reasonably possible the dependence of the facility on nonimmigrant registered nurses.
(v) There is not a strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a registered nurse employed by the facility within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition, and the employment of such an alien is not intended or designed to influence an election for a bargaining representative for registered nurses of the facility.
(vi) At the time of the filing of the petition for registered nurses under section 1101 (a)(15)(H)(i)(c) of this title, notice of the filing has been provided by the facility to the bargaining representative of the registered nurses at the facility or, where there is no such bargaining representative, notice of the filing has been provided to the registered nurses employed at the facility through posting in conspicuous locations.
(vii) The facility will not, at any time, employ a number of aliens issued visas or otherwise provided nonimmigrant status under section 1101 (a)(15)(H)(i)(c) of this title that exceeds 33 percent of the total number of registered nurses employed by the facility.
(viii) The facility will not, with respect to any alien issued a visa or otherwise provided nonimmigrant status under section 1101 (a)(15)(H)(i)(c) of this title—
(I) authorize the alien to perform nursing services at any worksite other than a worksite controlled by the facility; or
(II) transfer the place of employment of the alien from one worksite to another.
Nothing in clause (iv) shall be construed as requiring a facility to have taken significant steps described in such clause before November 12, 1999. A copy of the attestation shall be provided, within 30 days of the date of filing, to registered nurses employed at the facility on the date of filing.
(B) For purposes of subparagraph (A)(iv), each of the following shall be considered a significant step reasonably designed to recruit and retain registered nurses:
(i) Operating a training program for registered nurses at the facility or financing (or providing participation in) a training program for registered nurses elsewhere.
(ii) Providing career development programs and other methods of facilitating health care workers to become registered nurses.
(iii) Paying registered nurses wages at a rate higher than currently being paid to registered nurses similarly employed in the geographic area.
(iv) Providing reasonable opportunities for meaningful salary advancement by registered nurses.
The steps described in this subparagraph shall not be considered to be an exclusive list of the significant steps that may be taken to meet the conditions of subparagraph (A)(iv). Nothing in this subparagraph shall require a facility to take more than one step if the facility can demonstrate that taking a second step is not reasonable.
(C) Subject to subparagraph (E), an attestation under subparagraph (A)—
(i) shall expire on the date that is the later of—
(I) the end of the one-year period beginning on the date of its filing with the Secretary of Labor; or
(II) the end of the period of admission under section 1101 (a)(15)(H)(i)(c) of this title of the last alien with respect to whose admission it was applied (in accordance with clause (ii)); and
(ii) shall apply to petitions filed during the one-year period beginning on the date of its filing with the Secretary of Labor if the facility states in each such petition that it continues to comply with the conditions in the attestation.
(D) A facility may meet the requirements under this paragraph with respect to more than one registered nurse in a single petition.
(E)
(i) The Secretary of Labor shall compile and make available for public examination in a timely manner in Washington, D.C., a list identifying facilities which have filed petitions for nonimmigrants under section 1101 (a)(15)(H)(i)(c) of this title and, for each such facility, a copy of the facility’s attestation under subparagraph (A) (and accompanying documentation) and each such petition filed by the facility.
(ii) The Secretary of Labor shall establish a process, including reasonable time limits, for the receipt, investigation, and disposition of complaints respecting a facility’s failure to meet conditions attested to or a facility’s misrepresentation of a material fact in an attestation. Complaints may be filed by any aggrieved person or organization (including bargaining representatives, associations deemed appropriate by the Secretary, and other aggrieved parties as determined under regulations of the Secretary). The Secretary shall conduct an investigation under this clause if there is reasonable cause to believe that a facility fails to meet conditions attested to. Subject to the time limits established under this clause, this subparagraph shall apply regardless of whether an attestation is expired or unexpired at the time a complaint is filed.
(iii) Under such process, the Secretary shall provide, within 180 days after the date such a complaint is filed, for a determination as to whether or not a basis exists to make a finding described in clause (iv). If the Secretary determines that such a basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint within 60 days of the date of the determination.
(iv) If the Secretary of Labor finds, after notice and opportunity for a hearing, that a facility (for which an attestation is made) has failed to meet a condition attested to or that there was a misrepresentation of material fact in the attestation, 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 nurse per violation, with the total penalty not to exceed $10,000 per violation) as the Secretary determines to be appropriate. Upon receipt of such notice, the Attorney General shall not approve petitions filed with respect to a facility during a period of at least one year for nurses to be employed by the facility.
(v) In addition to the sanctions provided for under clause (iv), if the Secretary of Labor finds, after notice and an opportunity for a hearing, that a facility has violated the condition attested to under subparagraph (A)(iii) (relating to payment of registered nurses at the prevailing wage rate), the Secretary shall order the facility to provide for payment of such amounts of back pay as may be required to comply with such condition.
(F)
(i) The Secretary of Labor shall impose on a facility filing an attestation under subparagraph (A) a filing fee, in an amount prescribed by the Secretary based on the costs of carrying out the Secretary’s duties under this subsection, but not exceeding $250.
(ii) Fees collected under this subparagraph shall be deposited in a fund established for this purpose in the Treasury of the United States.
(iii) The collected fees in the fund shall be available to the Secretary of Labor, to the extent and in such amounts as may be provided in appropriations Acts, to cover the costs described in clause (i), in addition to any other funds that are available to the Secretary to cover such costs.
(3) The period of admission of an alien under section 1101 (a)(15)(H)(i)(c) of this title shall be 3 years.
(4) The total number of nonimmigrant visas issued pursuant to petitions granted under section 1101 (a)(15)(H)(i)(c) of this title in each fiscal year shall not exceed 500. The number of such visas issued for employment in each State in each fiscal year shall not exceed the following:
(A) For States with populations of less than 9,000,000, based upon the 1990 decennial census of population, 25 visas.
(B) For States with populations of 9,000,000 or more, based upon the 1990 decennial census of population, 50 visas.
(C) If the total number of visas available under this paragraph for a fiscal year quarter exceeds the number of qualified nonimmigrants who may be issued such visas during those quarters, the visas made available under this paragraph shall be issued without regard to the numerical limitation under subparagraph (A) or (B) of this paragraph during the last fiscal year quarter.
(5) A facility that has filed a petition under section 1101 (a)(15)(H)(i)(c) of this title to employ a nonimmigrant to perform nursing services for the facility—
(A) shall provide the nonimmigrant a wage rate and working conditions commensurate with those of nurses similarly employed by the facility;
(B) shall require the nonimmigrant to work hours commensurate with those of nurses similarly employed by the facility; and
(C) shall not interfere with the right of the nonimmigrant to join or organize a union.
(6) For purposes of this subsection and section 1101 (a)(15)(H)(i)(c) of this title, the term “facility” means a subsection (d) hospital (as defined in section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww (d)(1)(B))) that meets the following requirements:
(A) As of March 31, 1997, the hospital was located in a health professional shortage area (as defined in section 254e of title 42).
(B) Based on its settled cost report filed under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] for its cost reporting period beginning during fiscal year 1994—
(i) the hospital has not less than 190 licensed acute care beds;
(ii) the number of the hospital’s inpatient days for such period which were made up of patients who (for such days) were entitled to benefits under part A of such title [42 U.S.C. 1395c et seq.] is not less than 35 percent of the total number of such hospital’s acute care inpatient days for such period; and
(iii) the number of the hospital’s inpatient days for such period which were made up of patients who (for such days) were eligible for medical assistance under a State plan approved under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.], is not less than 28 percent of the total number of such hospital’s acute care inpatient days for such period.
(7) For purposes of paragraph (2)(A)(v), the term “lay off”, with respect to a worker—
(A) means to cause the worker’s loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract; but
(B) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
Nothing in this paragraph is intended to limit an employee’s or an employer’s rights under a collective bargaining agreement or other employment contract.
(n) Labor condition application
(1) No alien may be admitted or provided status as an H–1B nonimmigrant in an occupational classification unless the employer has filed with the Secretary of Labor an application stating the following:
(A) The employer—
(i) is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H–1B nonimmigrant wages that are at least—
(I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or
(II) the prevailing wage level for the occupational classification in the area of employment,
whichever is greater, based on the best information available as of the time of filing the application, and
(ii) will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of workers similarly employed.
(B) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment.
(C) The employer, at the time of filing the application—
(i) has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer’s employees in the occupational classification and area for which aliens are sought, or
(ii) if there is no such bargaining representative, has provided notice of filing in the occupational classification through such methods as physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which H–1B nonimmigrants are sought.
(D) The application shall contain a specification of the number of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed.
(E)
(i) In the case of an application described in clause (ii), the employer did not displace and will not displace a United States worker (as defined in paragraph (4)) employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the application.
(ii) An application described in this clause is an application filed on or after the date final regulations are first promulgated to carry out this subparagraph, and before [8] by an H–1B-dependent employer (as defined in paragraph (3)) or by an employer that has been found, on or after October 21, 1998, under paragraph (2)(C) or (5) to have committed a willful failure or misrepresentation during the 5-year period preceding the filing of the application. An application is not described in this clause if the only H–1B nonimmigrants sought in the application are exempt H–1B nonimmigrants.
(F) In the case of an application described in subparagraph (E)(ii), the employer will not place the nonimmigrant with another employer (regardless of whether or not such other employer is an H–1B-dependent employer) where—
(i) the nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by such other employer; and
(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer;
unless the employer has inquired of the other employer as to whether, and has no knowledge that, within the period beginning 90 days before and ending 90 days after the date of the placement of the nonimmigrant with the other employer, the other employer has displaced or intends to displace a United States worker employed by the other employer.
(G)
(i) In the case of an application described in subparagraph (E)(ii), subject to clause (ii), the employer, prior to filing the application—
(I) has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants under subparagraph (A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought; and
(II) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought.
(ii) The conditions described in clause (i) shall not apply to an application filed with respect to the employment of an H–1B nonimmigrant who is described in subparagraph (A), (B), or (C) of section 1153 (b)(1) of this title.
The employer shall make available for public examination, within one working day after the 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. The application form shall include a clear statement explaining the liability under subparagraph (F) of a placing employer if the other employer described in such subparagraph displaces a United States worker as described in such subparagraph. Nothing in subparagraph (G) shall be construed to prohibit an employer from using legitimate selection criteria relevant to the job that are normal or customary to the type of job involved, so long as such criteria are not applied in a discriminatory manner.
(2)
(A) Subject to paragraph (5)(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)
(i) If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(B), (1)(E), or (1)(F), a substantial failure to meet a condition of paragraph (1)(C), (1)(D), or (1)(G)(i)(I), 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.
(ii) If the Secretary finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1), a willful misrepresentation of material fact in an application, or a violation of clause (iv)—
(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 $5,000 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 2 years for aliens to be employed by the employer.
(iii) If the Secretary finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1) or a willful misrepresentation of material fact in an application, in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the 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 $35,000 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 3 years for aliens to be employed by the employer.
(iv) It is a violation of this clause for an employer who has filed an application under this subsection to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this clause, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer’s compliance with the requirements of this subsection or any rule or regulation pertaining to this subsection.
(v) The Secretary of Labor and the Attorney General shall devise a process under which an H–1B nonimmigrant who files a complaint regarding a violation of clause (iv) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.
(vi)
(I) It is a violation of this clause for an employer who has filed an application under this subsection to require an H–1B nonimmigrant to pay a penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer. The Secretary shall determine whether a required payment is a penalty (and not liquidated damages) pursuant to relevant State law.
(II) It is a violation of this clause for an employer who has filed an application under this subsection to require an alien who is the subject of a petition filed under section 1184 (c)(1) of this title, for which a fee is imposed under section 1184 (c)(9) of this title, to reimburse, or otherwise compensate, the employer for part or all of the cost of such fee. It is a violation of this clause for such an employer otherwise to accept such reimbursement or compensation from such an alien.
(III) If the Secretary finds, after notice and opportunity for a hearing, that an employer has committed a violation of this clause, the Secretary may impose a civil monetary penalty of $1,000 for each such violation and issue an administrative order requiring the return to the nonimmigrant of any amount paid in violation of this clause, or, if the nonimmigrant cannot be located, requiring payment of any such amount to the general fund of the Treasury.
(vii)
(I) It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application under this subsection and who places an H–1B nonimmigrant designated as a full-time employee on the petition filed under section 1184 (c)(1) of this title by the employer with respect to the nonimmigrant, after the nonimmigrant has entered into employment with the employer, in nonproductive status due to a decision by the employer (based on factors such as lack of work), or due to the nonimmigrant’s lack of a permit or license, to fail to pay the nonimmigrant full-time wages in accordance with paragraph (1)(A) for all such nonproductive time.
(II) It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application under this subsection and who places an H–1B nonimmigrant designated as a part-time employee on the petition filed under section 1184 (c)(1) of this title by the employer with respect to the nonimmigrant, after the nonimmigrant has entered into employment with the employer, in nonproductive status under circumstances described in subclause (I), to fail to pay such a nonimmigrant for such hours as are designated on such petition consistent with the rate of pay identified on such petition.
(III) In the case of an H–1B nonimmigrant who has not yet entered into employment with an employer who has had approved an application under this subsection, and a petition under section 1184 (c)(1) of this title, with respect to the nonimmigrant, the provisions of subclauses (I) and (II) shall apply to the employer beginning 30 days after the date the nonimmigrant first is admitted into the United States pursuant to the petition, or 60 days after the date the nonimmigrant becomes eligible to work for the employer (in the case of a nonimmigrant who is present in the United States on the date of the approval of the petition).
(IV) This clause does not apply to a failure to pay wages to an H–1B nonimmigrant for nonproductive time due to non-work-related factors, such as the voluntary request of the nonimmigrant for an absence or circumstances rendering the nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an employer that is a school or other educational institution from applying to an H–1B nonimmigrant an established salary practice of the employer, under which the employer pays to H–1B nonimmigrants and United States workers in the same occupational classification an annual salary in disbursements over fewer than 12 months, if—
(aa) the nonimmigrant agrees to the compressed annual salary payments prior to the commencement of the employment; and
(bb) the application of the salary practice to the nonimmigrant does not otherwise cause the nonimmigrant to violate any condition of the nonimmigrant’s authorization under this chapter to remain in the United States.
(VI) This clause shall not be construed as superseding clause (viii).
(viii) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an application under this subsection to fail to offer to an H–1B nonimmigrant, during the nonimmigrant’s period of authorized employment, benefits and eligibility for benefits (including the opportunity to participate in health, life, disability, and other insurance plans; the opportunity to participate in retirement and savings plans; and cash bonuses and noncash compensation, such as stock options (whether or not based on performance)) on the same basis, and in accordance with the same criteria, as the employer offers to United States workers.
(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.
(E) If an H–1B-dependent employer places a nonexempt H–1B nonimmigrant with another employer as provided under paragraph (1)(F) and the other employer has displaced or displaces a United States worker employed by such other employer during the period described in such paragraph, such displacement shall be considered for purposes of this paragraph a failure, by the placing employer, to meet a condition specified in an application submitted under paragraph (1); except that the Attorney General may impose a sanction described in subclause (II) of subparagraph (C)(i), (C)(ii), or (C)(iii) only if the Secretary of Labor found that such placing employer—
(i) knew or had reason to know of such displacement at the time of the placement of the nonimmigrant with the other employer; or
(ii) has been subject to a sanction under this subparagraph based upon a previous placement of an H–1B nonimmigrant with the same other employer.
(F) The Secretary may, on a case-by-case basis, subject an employer to random investigations for a period of up to 5 years, beginning on the date (on or after October 21, 1998) on which the employer is found by the Secretary to have committed a willful failure to meet a condition of paragraph (1) (or has been found under paragraph (5) to have committed a willful failure to meet the condition of paragraph (1)(G)(i)(II)) or to have made a willful misrepresentation of material fact in an application. The preceding sentence shall apply to an employer regardless of whether or not the employer is an H–1B-dependent employer. The authority of the Secretary under this subparagraph shall not be construed to be subject to, or limited by, the requirements of subparagraph (A).
(G)
(i) The Secretary of Labor may initiate an investigation of any employer that employs nonimmigrants described in section 1101 (a)(15)(H)(i)(b) of this title if the Secretary of Labor has reasonable cause to believe that the employer is not in compliance with this subsection. In the case of an investigation under this clause, the Secretary of Labor (or the acting Secretary in the case of the absence of [9] disability of the Secretary of Labor) shall personally certify that reasonable cause exists and shall approve commencement of the investigation. The investigation may be initiated for reasons other than completeness and obvious inaccuracies by the employer in complying with this subsection.
(ii) If the Secretary of Labor receives specific credible information from a source who is likely to have knowledge of an employer’s practices or employment conditions, or an employer’s compliance with the employer’s labor condition application under paragraph (1), and whose identity is known to the Secretary of Labor, and such information provides reasonable cause to believe that the employer has committed a willful failure to meet a condition of paragraph (1)(A), (1)(B), (1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern or practice of failures to meet such a condition, or has committed a substantial failure to meet such a condition that affects multiple employees, the Secretary of Labor may conduct an investigation into the alleged failure or failures. The Secretary of Labor may withhold the identity of the source from the employer, and the source’s identity shall not be subject to disclosure under section 552 of title 5.
(iii) The Secretary of Labor shall establish a procedure for any person desiring to provide to the Secretary of Labor information described in clause (ii) that may be used, in whole or in part, as the basis for the commencement of an investigation described in such clause, to provide the information in writing on a form developed and provided by the Secretary of Labor and completed by or on behalf of the person. The person may not be an officer or employee of the Department of Labor, unless the information satisfies the requirement of clause (iv)(II) (although an officer or employee of the Department of Labor may complete the form on behalf of the person).
(iv) Any investigation initiated or approved by the Secretary of Labor under clause (ii) shall be based on information that satisfies the requirements of such clause and that—
(I) originates from a source other than an officer or employee of the Department of Labor; or
(II) was lawfully obtained by the Secretary of Labor in the course of lawfully conducting another Department of Labor investigation under this chapter of [9] any other Act.
(v) The receipt by the Secretary of Labor of information submitted by an employer to the Attorney General or the Secretary of Labor for purposes of securing the employment of a nonimmigrant described in section 1101 (a)(15)(H)(i)(b) of this title shall not be considered a receipt of information for purposes of clause (ii).
(vi) No investigation described in clause (ii) (or hearing described in clause (viii) based on such investigation) may be conducted with respect to information about a failure to meet a condition described in clause (ii), unless the Secretary of Labor receives the information not later than 12 months after the date of the alleged failure.
(vii) The Secretary of Labor shall provide notice to an employer with respect to whom there is reasonable cause to initiate an investigation described in clauses [10] (i) or (ii), prior to the commencement of an investigation under such clauses, of the intent to conduct an investigation. The notice shall be provided in such a manner, and shall contain sufficient detail, to permit the employer to respond to the allegations before an investigation is commenced. The Secretary of Labor is not required to comply with this clause if the Secretary of Labor determines that to do so would interfere with an effort by the Secretary of Labor to secure compliance by the employer with the requirements of this subsection. There shall be no judicial review of a determination by the Secretary of Labor under this clause.
(viii) An investigation under clauses [10] (i) or (ii) may be conducted for a period of up to 60 days. If the Secretary of Labor determines after such an investigation that a reasonable basis exists to make a finding that the employer has committed a willful failure to meet a condition of paragraph (1)(A), (1)(B), (1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern or practice of failures to meet such a condition, or has committed a substantial failure to meet such a condition that affects multiple employees, the Secretary of Labor shall provide for notice of such determination to the interested parties and an opportunity for a hearing in accordance with section 556 of title 5 within 120 days after the date of the determination. If such a hearing is requested, the Secretary of Labor shall make a finding concerning the matter by not later than 120 days after the date of the hearing.
(H)
(i) Except as provided in clauses (ii) and (iii), a person or entity is considered to have complied with the requirements of this subsection, notwithstanding a technical or procedural failure to meet such requirements, if there was a good faith attempt to comply with the requirements.
(ii) Clause (i) shall not apply if—
(I) the Department of Labor (or another enforcement agency) has explained to the person or entity the basis for the failure;
(II) the person or entity has been provided a period of not less than 10 business days (beginning after the date of the explanation) within which to correct the failure; and
(III) the person or entity has not corrected the failure voluntarily within such period.
(iii) A person or entity that, in the course of an investigation, is found to have violated the prevailing wage requirements set forth in paragraph (1)(A), shall not be assessed fines or other penalties for such violation if the person or entity can establish that the manner in which the prevailing wage was calculated was consistent with recognized industry standards and practices.
(iv) Clauses (i) and (iii) shall not apply to a person or entity that has engaged in or is engaging in a pattern or practice of willful violations of this subsection.
(I) Nothing in this subsection shall be construed as superseding or preempting any other enforcement-related authority under this chapter (such as the authorities under section 1324b of this title), or any other Act.
(3)
(A) For purposes of this subsection, the term “H–1B-dependent employer” means an employer that—
(i)
(I) has 25 or fewer full-time equivalent employees who are employed in the United States; and
(II) employs more than 7 H–1B nonimmigrants;
(ii)
(I) has at least 26 but not more than 50 full-time equivalent employees who are employed in the United States; and
(II) employs more than 12 H–1B nonimmigrants; or
(iii)
(I) has at least 51 full-time equivalent employees who are employed in the United States; and
(II) employs H–1B nonimmigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees.
(B) For purposes of this subsection—
(i) the term “exempt H–1B nonimmigrant” means an H–1B nonimmigrant who—
(I) receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000; or
(II) has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended employment; and
(ii) the term “nonexempt H–1B nonimmigrant” means an H–1B nonimmigrant who is not an exempt H–1B nonimmigrant.
(C) For purposes of subparagraph (A)—
(i) in computing the number of full-time equivalent employees and the number of H–1B nonimmigrants, exempt H–1B nonimmigrants shall not be taken into account during the longer of—
(I) the 6-month period beginning on October 21, 1998; or
(II) the period beginning on October 21, 1998, and ending on the date final regulations are issued to carry out this paragraph; and
(ii) any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of title 26 shall be treated as a single employer.
(4) For purposes of this subsection:
(A) The term “area of employment” means the area within normal commuting distance of the worksite or physical location where the work of the H–1B nonimmigrant is or will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment.
(B) In the case of an application with respect to one or more H–1B nonimmigrants by an employer, the employer is considered to “displace” a United States worker from a job if the employer lays off the worker from a job that is essentially the equivalent of the job for which the nonimmigrant or nonimmigrants is or are sought. A job shall not be considered to be essentially equivalent of another job unless it involves essentially the same responsibilities, was held by a United States worker with substantially equivalent qualifications and experience, and is located in the same area of employment as the other job.
(C) The term “H–1B nonimmigrant” means an alien admitted or provided status as a ¬nonimmigrant described in section 1101 (a)(15)(H)(i)(b) of this title.
(D)
(i) The term “lays off”, with respect to a worker—
(I) means to cause the worker’s loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract (other than a temporary employment contract entered into in order to evade a condition described in subparagraph (E) or (F) of paragraph (1)); but
(II) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under paragraph (1)(F), with either employer described in such paragraph) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
(ii) Nothing in this subparagraph is intended to limit an employee’s rights under a collective bargaining agreement or other employment contract.
(E) The term “United States worker” means an employee who—
(i) is a citizen or national of the United States; or
(ii) is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 1157 of this title, is granted asylum under section 1158 of this title, or is an immigrant otherwise authorized, by this chapter or by the Attorney General, to be employed.
(5)
(A) This paragraph shall apply instead of subparagraphs (A) through (E) of paragraph (2) in the case of a violation described in subparagraph (B), but shall not be construed to limit or affect the authority of the Secretary or the Attorney General with respect to any other violation.
(B) The Attorney General shall establish a process for the receipt, initial review, and disposition in accordance with this paragraph of complaints respecting an employer’s failure to meet the condition of paragraph (1)(G)(i)(II) or a petitioner’s misrepresentation of material facts with respect to such condition. Complaints may be filed by an aggrieved individual who has submitted a resume or otherwise applied in a reasonable manner for the job that is the subject of the condition. No proceeding shall be conducted under this paragraph on a complaint concerning such a failure or misrepresentation unless the Attorney General determines that the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively.
(C) If the Attorney General finds that a complaint has been filed in accordance with subparagraph (B) and there is reasonable cause to believe that such a failure or misrepresentation described in such complaint has occurred, the Attorney General shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service. The procedure and rules of such Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings. The Attorney General shall pay the fee and expenses of the arbitrator.
(D)
(i) The arbitrator shall make findings respecting whether a failure or misrepresentation described in subparagraph (B) occurred. If the arbitrator concludes that failure or misrepresentation was willful, the arbitrator shall make a finding to that effect. The arbitrator may not find such a failure or misrepresentation (or that such a failure or misrepresentation was willful) unless the complainant demonstrates such a failure or misrepresentation (or its willful character) by clear and convincing evidence. The arbitrator shall transmit the findings in the form of a written opinion to the parties to the arbitration and the Attorney General. Such findings shall be final and conclusive, and, except as provided in this subparagraph, no official or court of the United States shall have power or jurisdiction to review any such findings.
(ii) The Attorney General may review and reverse or modify the findings of an arbitrator only on the same bases as an award of an arbitrator may be vacated or modified under section 10 or 11 of title 9.
(iii) With respect to the findings of an arbitrator, a court may review only the actions of the Attorney General under clause (ii) and may set aside such actions only on the grounds described in subparagraph (A), (B), or (C) of section 706 (a)(2) of title 5. Notwithstanding any other provision of law, such judicial review may only be brought in an appropriate United States court of appeals.
(E) If the Attorney General receives a finding of an arbitrator under this paragraph that an employer has failed to meet the condition of paragraph (1)(G)(i)(II) or has misrepresented a material fact with respect to such condition, unless the Attorney General reverses or modifies the finding under subparagraph (D)(ii)—
(i) the Attorney General may impose administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation or $5,000 per violation in the case of a willful failure or misrepresentation) as the Attorney General determines to be appropriate; and
(ii) the Attorney General is authorized to not approve petitions filed, with respect to that employer and for aliens to be employed by the employer, under section 1154 or 1184 (c) of this title—
(I) during a period of not more than 1 year; or
(II) in the case of a willful failure or willful misrepresentation, during a period of not more than 2 years.
(F) The Attorney General shall not delegate, to any other employee or official of the Department of Justice, any function of the Attorney General under this paragraph, until 60 days after the Attorney General has submitted a plan for such delegation to the Committees on the Judiciary of the United States House of Representatives and the Senate.
(o) Omitted
(p) Computation of prevailing wage level
(1) In computing the prevailing wage level for an occupational classification in an area of employment for purposes of subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section in the case of an employee of—
(A) an institution of higher education (as defined in section 1001 (a) of title 20), or a related or affiliated nonprofit entity; or
(B) a nonprofit research organization or a Governmental research organization,
the prevailing wage level shall only take into account employees at such institutions and organizations in the area of employment.
(2) With respect to a professional athlete (as defined in subsection (a)(5)(A)(iii)(II) of this section) when the job opportunity is covered by professional sports league rules or regulations, the wage set forth in those rules or regulations shall be considered as not adversely affecting the wages of United States workers similarly employed and be considered the prevailing wage.
(3) The prevailing wage required to be paid pursuant to subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section shall be 100 percent of the wage determined pursuant to those sections.
(4) Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level.
(q) Academic honoraria
Any alien admitted under section 1101 (a)(15)(B) of this title may accept an honorarium payment and associated incidental expenses for a usual academic activity or activities (lasting not longer than 9 days at any single institution), as defined by the Attorney General in consultation with the Secretary of Education, if such payment is offered by an institution or organization described in subsection (p)(1) of this section and is made for services conducted for the benefit of that institution or entity and if the alien has not accepted such payment or expenses from more than 5 institutions or organizations in the previous 6-month period.
(r) Exception for certain alien nurses
Subsection (a)(5)(C) of this section shall not apply to an alien who seeks to enter the United States for the purpose of performing labor as a nurse who presents to the consular officer (or in the case of an adjustment of status, the Attorney General) a certified statement from the Commission on Graduates of Foreign Nursing Schools (or an equivalent independent credentialing organization approved for the certification of nurses under subsection (a)(5)(C) of this section by the Attorney General in consultation with the Secretary of Health and Human Services) that—
(1) the alien has a valid and unrestricted license as a nurse in a State where the alien intends to be employed and such State verifies that the foreign licenses of alien nurses are authentic and unencumbered;
(2) the alien has passed the National Council Licensure Examination (NCLEX);
(3) the alien is a graduate of a nursing program—
(A) in which the language of instruction was English;
(B) located in a country—
(i) designated by such commission not later than 30 days after November 12, 1999, based on such commission’s assessment that the quality of nursing education in that country, and the English language proficiency of those who complete such programs in that country, justify the country’s designation; or
(ii) designated on the basis of such an assessment by unanimous agreement of such commission and any equivalent credentialing organizations which have been approved under subsection (a)(5)(C) of this section for the certification of nurses under this subsection; and
(C)
(i) which was in operation on or before November 12, 1999; or
(ii) has been approved by unanimous agreement of such commission and any equivalent credentialing organizations which have been approved under subsection (a)(5)(C) of this section for the certification of nurses under this subsection.
(s) Consideration of benefits received as battered alien in determination of inadmissibility as likely to become public charge
In determining whether an alien described in subsection (a)(4)(C)(i) of this section is inadmissible under subsection (a)(4) of this section or ineligible to receive an immigrant visa or otherwise to adjust to the status of permanent resident by reason of subsection (a)(4) of this section, the consular officer or the Attorney General shall not consider any benefits the alien may have received that were authorized under section 1641 (c) of this title.
(t) 11 Nonimmigrant professionals; labor attestations
(1) No alien may be admitted or provided status as a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title in an occupational classification unless the employer has filed with the Secretary of Labor an attestation stating the following:
(A) The employer—
(i) is offering and will offer during the period of authorized employment to aliens admitted or provided status under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title wages that are at least—
(I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or
(II) the prevailing wage level for the occupational classification in the area of employment,
whichever is greater, based on the best information available as of the time of filing the attestation; and
(ii) will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of workers similarly employed.
(B) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment.
(C) The employer, at the time of filing the attestation—
(i) has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer’s employees in the occupational classification and area for which aliens are sought; or
(ii) if there is no such bargaining representative, has provided notice of filing in the occupational classification through such methods as physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which nonimmigrants under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title are sought.
(D) A specification of the number of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed.
(2)
(A) The employer shall make available for public examination, within one working day after the date on which an attestation under this subsection is filed, at the employer’s principal place of business or worksite, a copy of each such attestation (and such accompanying documents as are necessary).
(B)
(i) The Secretary of Labor shall compile, on a current basis, a list (by employer and by occupational classification) of the attestations filed under this subsection. Such list shall include, with respect to each attestation, the wage rate, number of aliens sought, period of intended employment, and date of need.
(ii) The Secretary of Labor shall make such list available for public examination in Washington, D.C.
(C) The Secretary of Labor shall review an attestation filed under this subsection only for completeness and obvious inaccuracies. Unless the Secretary of Labor finds that an attestation is incomplete or obviously inaccurate, the Secretary of Labor shall provide the certification described in section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title within 7 days of the date of the filing of the attestation.
(3)
(A) The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting the failure of an employer to meet a condition specified in an attestation submitted under this subsection or misrepresentation by the employer of material facts in such an attestation. 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 of Labor shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.
(B) Under the process described in subparagraph (A), the Secretary of Labor shall provide, within 30 days after the date 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 of Labor determines that such a reasonable basis exists, the Secretary of Labor 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 of Labor 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 of Labor may consolidate the hearings under this subparagraph on such complaints.
(C)
(i) If the Secretary of Labor 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 paragraph (1)(C) or (1)(D), or a misrepresentation of material fact in an attestation—
(I) the Secretary of Labor shall notify the Secretary of State and the Secretary of Homeland Security 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 of Labor determines to be appropriate; and
(II) the Secretary of State or the Secretary of Homeland Security, as appropriate, shall not approve petitions or applications filed with respect to that employer under section 1154, 1184 (c), 1101 (a)(15)(H)(i)(b1), or 1101 (a)(15)(E)(iii) of this title during a period of at least 1 year for aliens to be employed by the employer.
(ii) If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1), a willful misrepresentation of material fact in an attestation, or a violation of clause (iv)—
(I) the Secretary of Labor shall notify the Secretary of State and the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $5,000 per violation) as the Secretary of Labor determines to be appropriate; and
(II) the Secretary of State or the Secretary of Homeland Security, as appropriate, shall not approve petitions or applications filed with respect to that employer under section 1154, 1184 (c), 1101 (a)(15)(H)(i)(b1), or 1101 (a)(15)(E)(iii) of this title during a period of at least 2 years for aliens to be employed by the employer.
(iii) If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1) or a willful misrepresentation of material fact in an attestation, in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition or application supported by the attestation—
(I) the Secretary of Labor shall notify the Secretary of State and the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $35,000 per violation) as the Secretary of Labor determines to be appropriate; and
(II) the Secretary of State or the Secretary of Homeland Security, as appropriate, shall not approve petitions or applications filed with respect to that employer under section 1154, 1184 (c), 1101 (a)(15)(H)(i)(b1), or 1101 (a)(15)(E)(iii) of this title during a period of at least 3 years for aliens to be employed by the employer.
(iv) It is a violation of this clause for an employer who has filed an attestation under this subsection to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this clause, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer’s compliance with the requirements of this subsection or any rule or regulation pertaining to this subsection.
(v) The Secretary of Labor and the Secretary of Homeland Security shall devise a process under which a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title who files a complaint regarding a violation of clause (iv) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.
(vi)
(I) It is a violation of this clause for an employer who has filed an attestation under this subsection to require a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title to pay a penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer. The Secretary of Labor shall determine whether a required payment is a penalty (and not liquidated damages) pursuant to relevant State law.
(II) If the Secretary of Labor finds, after notice and opportunity for a hearing, that an employer has committed a violation of this clause, the Secretary of Labor may impose a civil monetary penalty of $1,000 for each such violation and issue an administrative order requiring the return to the nonimmigrant of any amount paid in violation of this clause, or, if the nonimmigrant cannot be located, requiring payment of any such amount to the general fund of the Treasury.
(vii)
(I) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an attestation under this subsection and who places a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title designated as a full-time employee in the attestation, after the nonimmigrant has entered into employment with the employer, in nonproductive status due to a decision by the employer (based on factors such as lack of work), or due to the nonimmigrant’s lack of a permit or license, to fail to pay the nonimmigrant full-time wages in accordance with paragraph (1)(A) for all such nonproductive time.
(II) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an attestation under this subsection and who places a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title designated as a part-time employee in the attestation, after the nonimmigrant has entered into employment with the employer, in nonproductive status under circumstances described in subclause (I), to fail to pay such a nonimmigrant for such hours as are designated on the attestation consistent with the rate of pay identified on the attestation.
(III) In the case of a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title who has not yet entered into employment with an employer who has had approved an attestation under this subsection with respect to the nonimmigrant, the provisions of subclauses (I) and (II) shall apply to the employer beginning 30 days after the date the nonimmigrant first is admitted into the United States, or 60 days after the date the nonimmigrant becomes eligible to work for the employer in the case of a nonimmigrant who is present in the United States on the date of the approval of the attestation filed with the Secretary of Labor.
(IV) This clause does not apply to a failure to pay wages to a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title for nonproductive time due to non-work-related factors, such as the voluntary request of the nonimmigrant for an absence or circumstances rendering the nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an employer that is a school or other educational institution from applying to a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title an established salary practice of the employer, under which the employer pays to nonimmigrants under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title and United States workers in the same occupational classification an annual salary in disbursements over fewer than 12 months, if—
(aa) the nonimmigrant agrees to the compressed annual salary payments prior to the commencement of the employment; and
(bb) the application of the salary practice to the nonimmigrant does not otherwise cause the nonimmigrant to violate any condition of the nonimmigrant’s authorization under this chapter to remain in the United States.
(VI) This clause shall not be construed as superseding clause (viii).
(viii) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an attestation under this subsection to fail to offer to a nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title, during the nonimmigrant’s period of authorized employment, benefits and eligibility for benefits (including the opportunity to participate in health, life, disability, and other insurance plans; the opportunity to participate in retirement and savings plans; and cash bonuses and non-cash compensation, such as stock options (whether or not based on performance)) on the same basis, and in accordance with the same criteria, as the employer offers to United States workers.
(D) If the Secretary of Labor finds, after notice and opportunity for a hearing, that an employer has not paid wages at the wage level specified in the attestation and required under paragraph (1), the Secretary of Labor 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.
(E) The Secretary of Labor may, on a case-by-case basis, subject an employer to random investigations for a period of up to 5 years, beginning on the date on which the employer is found by the Secretary of Labor to have committed a willful failure to meet a condition of paragraph (1) or to have made a willful misrepresentation of material fact in an attestation. The authority of the Secretary of Labor under this subparagraph shall not be construed to be subject to, or limited by, the requirements of subparagraph (A).
(F) Nothing in this subsection shall be construed as superseding or preempting any other enforcement-related authority under this chapter (such as the authorities under section 1324b of this title), or any other Act.
(4) For purposes of this subsection:
(A) The term “area of employment” means the area within normal commuting distance of the worksite or physical location where the work of the nonimmigrant under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title is or will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment.
(B) In the case of an attestation with respect to one or more nonimmigrants under section 1101 (a)(15)(H)(i)(b1) of this title or section 1101 (a)(15)(E)(iii) of this title by an employer, the employer is considered to “displace” a United States worker from a job if the employer lays off the worker from a job that is essentially the equivalent of the job for which the nonimmigrant or nonimmigrants is or are sought. A job shall not be considered to be essentially equivalent of another job unless it involves essentially the same responsibilities, was held by a United States worker with substantially equivalent qualifications and experience, and is located in the same area of employment as the other job.
(C)
(i) The term “lays off”, with respect to a worker—
(I) means to cause the worker’s loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract; but
(II) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
(ii) Nothing in this subparagraph is intended to limit an employee’s rights under a collective bargaining agreement or other employment contract.
(D) The term “United States worker” means an employee who—
(i) is a citizen or national of the United States; or
(ii) is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 1157 of this title, is granted asylum under section 1158 of this title, or is an immigrant otherwise authorized, by this chapter or by the Secretary of Homeland Security, to be employed.
(t) 12 Foreign residence requirement
(1) Except as provided in paragraph (2), no person admitted under section 1101 (a)(15)(Q)(ii)(I) of this title, or acquiring such status after admission, shall be eligible to apply for nonimmigrant status, an immigrant visa, or permanent residence under this chapter until it is established that such person has resided and been physically present in the person’s country of nationality or last residence for an aggregate of at least 2 years following departure from the United States.
(2) The Secretary of Homeland Security may waive the requirement of such 2-year foreign residence abroad if the Secretary determines that—
(A) departure from the United States would impose exceptional hardship upon the alien’s spouse or child (if such spouse or child is a citizen of the United States or an alien lawfully admitted for permanent residence); or
(B) the admission of the alien is in the public interest or the national interest of the United States.
________________________________________
[1] So in original. The semicolon probably should be a comma.
[2] See References in Text note below.
[3] So in original. Probably should be a reference to section 1229c of this title.
[4] So in original. Probably should be preceded by “ineligible for”.
[5] So in original.
[6] So in original. Probably should be “Secretary’s”.
[7] So in original. Probably should be “(10)(E))”.
[8] So in original.
[9] So in original. Probably should be “or”.
[10] So in original. Probably should be “clause”.
[11] So in original. Two subsecs. (t) have been enacted.
[12] So in original. Two subsecs. (t) have been enacted.
September 28, 2009
Roe v Wade, Not really about abortion, is it?
For those of you who have actually begun to wonder if Roe says what the media says that it says, here it is. Roe is actually about ‘standing’ and ‘mootness’. It’s wrong on its face, but so many of the Supremes’ decisions are, who can count and what can we do (vote Whig, of course, but that’d require that you buy the book: “Three Strikes and You’re out”, which you can’t find, can you?), about it? Three Strikes also has a section that includes the legal proof that the Federal Government cannot legally tax personal income. So, here’s Roe v Wade in its entirety:
BLACKMUN, J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
——————————————————————————–
410 U.S. 113
Roe v. Wade
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
——————————————————————————–
No. 70-18 Argued: December 13, 1971 — Decided: January 22, 1973
——————————————————————————–
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast, and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we [p117] have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes’ admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76 (1905):
[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State’s Penal Code. [n1] These make it a crime to “procure an abortion,” as therein [p118] defined, or to attempt one, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Similar statutes are in existence in a majority of the States. [n2] [p119]
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 (1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by “medical advice for the purpose of saving the life of the mother.” [n3] [p120]
II
Jane Roe, [n4] a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”; that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint, Roe purported to sue “on behalf of herself and all other women” similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe’s action. In his complaint, he alleged that he had been arrested previously for violations of the Texas abortion statutes, and [p121] that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
John and Mary Doe, [n5] a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a “neural-chemical” disorder; that her physician had “advised her to avoid pregnancy until such time as her condition has materially improved” (although a pregnancy at the present time would not present “a serious risk” to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that, if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue “on behalf of themselves and all couples similarly situated.”
The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, [p122] and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy, and did not have standing. It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the
fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,
and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does’ complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F.Supp. 1217, 1225 (ND Tex.1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. § 1253 have appealed to this Court from that part of the District Court’s judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statute, from the court’s grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971) [p123]
It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs’ prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v. University Committee, 399 U.S. 383 (1970), are to the effect that § 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is properly here, as this one is, on appeal under 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm’n, 396 U.S. 320 (1970); Florida Lime Growers v. Jacobsen, 362 U.S. 73, 80-81 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, post, p. 179.
IV
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that “personal stake in the outcome of the controversy,” Baker v. Carr, 369 U.S. 186, 204 (1962), that insures that
the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,
Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972)? And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court’s granting relief to him as a plaintiff-intervenor? [p124]
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.
Viewing Roe’s case as of the time of its filing and thereafter until as late a May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (Kan.1972). See Truax v. Raich, 239 U.S. 33 (1915). Indeed, we do not read the appellee’s brief as really asserting anything to the contrary. The “logical nexus between the status asserted and the claim sought to be adjudicated,” Flast v. Cohen, 392 U.S. at 102, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970, [n6] or on the following June 17 when the court’s opinion and judgment were filed. And he suggests that Roe’s case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy. [p125]
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor’s position is different. He entered Roe’s litigation as a plaintiff-intervenor, alleging in his complaint that he:
[I]n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs. [p126] James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-692524-H. In both cases, the defendant is charged with abortion. . . .
In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although he stated that he has been arrested in the past for violating the State’s abortion laws, he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad faith prosecution. In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a “potential future defendant,” and to assert only the latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66 (1971), compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v. [p127] Harris, 401 U.S. 37 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); and Byrne v. Karaleis, 401 U.S. 216 (1971). See also Dombrowski v. Pfister, 380 U.S. 479 (1965). We note, in passing, that Younger and its companion cases were decided after the three-judge District Court decision in this case.
Dr. Hallford’s complaint in intervention, therefore, is to be dismissed. [n7] He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe’s standing in her case, the issue of the Does’ standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Does’ posture.
Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for “other highly personal reasons.” But they “fear . . . they may face the prospect of becoming [p128] parents.” And if pregnancy ensues, they “would want to terminate” it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged “detrimental effect upon [their] marital happiness” because they are forced to “the choice of refraining from normal sexual relations or of endangering Mary Doe’s health through a possible pregnancy.” Their claim is that, sometime in the future, Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and, at that time in the future, she might want an abortion that might then be illegal under the Texas statutes.
This very phrasing of the Does’ position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place, and all may not combine. In the Does’ estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Younger v. Harris, 401 U.S. at 41-42; Golden v. Zwickler, 394 U.S. at 109-110; Abele v. Markle, 452 F.2d at 1124-1125; Crossen v. Breckenridge, 446 F.2d at 839. The Does’ claim falls far short of those resolved otherwise in the cases that the Does urge upon us, namely, Investment Co. Institute v. Camp, 401 U.S. 617 (1971); Data Processing Service v. Camp, 397 U.S. 150 (1970); [p129] and Epperson v. Arkansas, 393 U.S. 97 (1968). See also Truax v. Raich, 239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.
V
The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id. at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 486 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century. [p130]
1. Ancient attitudes. These are not capable of precise determination. We are told that, at the time of the Persian Empire, abortifacients were known, and that criminal abortions were severely punished. [n8] We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, [n9] and that “it was resorted to without scruple.” [n10] The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome’s prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. [n11] Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father’s right to his offspring. Ancient religion did not bar abortion. [n12]
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described [p131] as the Father of Medicine, the “wisest and the greatest practitioner of his art,” and the “most important and most complete medical personality of antiquity,” who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? [n13] The Oath varies somewhat according to the particular translation, but in any translation the content is clear:
I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce abortion, [n14]
or
I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy. [n15]
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, p. 179, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory: [n16] The Oath was not uncontested even in Hippocrates’ day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them, the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, “echoes Pythagorean doctrines,” [p132] and “[i]n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity.” [n17]
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion, and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.D. 130-200) “give evidence of the violation of almost every one of its injunctions.” [n18] But with the end of antiquity, a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath “became the nucleus of all medical ethics,” and “was applauded as the embodiment of truth.” Thus, suggests Dr. Edelstein, it is “a Pythagorean manifesto, and not the expression of an absolute standard of medical conduct.” [n19]
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath’s apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that, at common law, abortion performed before “quickening” — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy [n20] — was not an indictable offense. [n21] The absence [p133] of a common law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became “formed” or recognizably human, or in terms of when a “person” came into being, that is, infused with a “soul” or “animated.” A loose consensus evolved in early English law that these events occurred at some point between conception and live birth. [n22] This was “mediate animation.” Although [p134] Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that, prior to this point, the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas’ definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common law scholars, and found its way into the received common law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide. [n23] But the later and predominant view, following the great common law scholars, has been that it was, at most, a lesser offense. In a frequently cited [p135] passage, Coke took the position that abortion of a woman “quick with childe” is “a great misprision, and no murder.” [n24] Blackstone followed, saying that, while abortion after quickening had once been considered manslaughter (though not murder), “modern law” took a less severe view. [n25] A recent review of the common law precedents argues, however, that those precedents contradict Coke, and that even post-quickening abortion was never established as a common law crime. [n26] This is of some importance, because, while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law, [n27] others followed Coke in stating that abortion [p136] of a quick fetus was a “misprision,” a term they translated to mean “misdemeanor.” [n28] That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common law crime even with respect to the destruction of a quick fetus.
4. The English statutory law. England’s first criminal abortion statute, Lord Ellenborough’s Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but, in § 2, it provided lesser penalties for the felony of abortion before quickening, and thus preserved the “quickening” distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of “the life of a child capable of being born alive.” It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be [p137] found guilty of the offense
unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.
A seemingly notable development in the English law was the case of Rex v. Bourne, [1939] 1 K.B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and observed that that Act related to “the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature.” Id. at 691. He concluded that the 1861 Act’s use of the word “unlawfully,” imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother’s life in the 1861 Act. He then construed the phrase “preserving the life of the mother” broadly, that is, “in a reasonable sense,” to include a serious and permanent threat to the mother’s health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good faith belief that the abortion was necessary for this purpose. Id. at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a)
that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,
or (b)
that there is a substantial risk that, if the child were born it would suffer from such physical or mental abnormalities as [p138] to be seriously handicapped.
The Act also provides that, in making this determination, “account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.” It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good faith opinion that the abortion “is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.”
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the preexisting English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman “quick with child.” [n29] The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. [n30] In 1828, New York enacted legislation [n31] that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it
shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.
By 1840, when Texas had received the common law, [n32] only eight American States [p139] had statutes dealing with abortion. [n33] It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening, but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother’s life, that provision soon disappeared, and the typical law required that the procedure actually be necessary for that purpose. Gradually, in the middle and late 19th century, the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother. [n34] The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother’s health. [n35] Three States permitted abortions that were not “unlawfully” performed or that were not “without lawful justification,” leaving interpretation of those standards to the courts. [n36] In [p140] the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3, [n37] set forth as Appendix B to the opinion in Doe v. Bolton, post, p. 205.
It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity [p141] to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.
An AMA Committee on Criminal Abortion was appointed in May, 1857. It presented its report, 12 Trans. of the Am.Med.Assn. 778 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion “with a view to its general suppression.” It deplored abortion and its frequency and it listed three causes of “this general demoralization”:
The first of these causes is a widespread popular ignorance of the true character of the crime — a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.
The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life. . . .
The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, [p142] and to its life as yet denies all protection.
Id. at 776. The Committee then offered, and the Association adopted, resolutions protesting “against such unwarrantable destruction of human life,” calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies “in pressing the subject.” Id. at 28, 78.
In 1871, a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation,
We had to deal with human life. In a matter of less importance, we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.
22 Trans. of the Am.Med.Assn. 268 (1871). It proffered resolutions, adopted by the Association, id. at 38-39, recommending, among other things, that it
be unlawful and unprofessional for any physician to induce abortion or premature labor without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child — if that be possible,
and calling
the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females — aye, and men also, on this important question.
Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion except when there is “documented medical evidence” of a threat to the health or life of the mother, or that the child “may be born with incapacitating physical deformity or mental deficiency,” or that a pregnancy “resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the [p143] patient,” two other physicians “chosen because of their recognized professional competence have examined the patient and have concurred in writing,” and the procedure “is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.” The providing of medical information by physicians to state legislatures in their consideration of legislation regarding therapeutic abortion was “to be considered consistent with the principles of ethics of the American Medical Association.” This recommendation was adopted by the House of Delegates. Proceedings of the AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions and of a report from its Board of Trustees, a reference committee noted “polarization of the medical profession on this controversial issue”; division among those who had testified; a difference of opinion among AMA councils and.committees; “the remarkable shift in testimony” in six months, felt to be influenced “by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available; ” and a feeling “that this trend will continue.” On June 25, 1970, the House of Delegates adopted preambles and most of the resolutions proposed by the reference committee. The preambles emphasized “the best interests of the patient,” “sound clinical judgment,” and “informed patient consent,” in contrast to “mere acquiescence to the patient’s demand.” The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law, and that no party to the procedure should be required to violate personally held moral principles. [n38] Proceedings [p144] of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary opinion. [n39]
7. The position of the American Public Health Association. In October, 1970, the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number:
a. Rapid and simple abortion referral must be readily available through state and local public [p145] health departments, medical societies, or other nonprofit organizations.
b. An important function of counseling should be to simplify and expedite the provision of abortion services; it should not delay the obtaining of these services.
c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications, and not on a routine basis.
d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.
e. Contraception and/or sterilization should be discussed with each abortion patient.
Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396 (1971). Among factors pertinent to life and health risks associated with abortion were three that “are recognized as important”:
a. the skill of the physician,
b. the environment in which the abortion is performed, and above all
c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history.
Id. at 397.
It was said that “a well equipped hospital” offers more protection
to cope with unforeseen difficulties than an office or clinic without such resources. . . . The factor of gestational age is of overriding importance.
Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first trimester, [p146] abortion in the hospital with or without overnight stay “is probably the safest practice.” An abortion in an extramural facility, however, is an acceptable alternative “provided arrangements exist in advance to admit patients promptly if unforeseen complications develop.” Standards for an abortion facility were listed. It was said that, at present, abortions should be performed by physicians or osteopaths who are licensed to practice and who have “adequate training.” Id. at 398.
8. The position of the American Bar Association. At its meeting in February, 1972, the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. 58 A.B.A.J. 380 (1972). We set forth the Act in full in the margin. [n40] The [p147] Opinion of the Court Conference has appended an enlightening Prefatory Note. [n41]
VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. [p148]
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. [n42] The appellants and amici contend, moreover, that this is not a proper state purpose, at all and suggest that, if it were, the Texas statutes are overbroad in protecting it, since the law fails to distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. [n43] This was particularly true prior to the [p149] development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940’s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. [n44] Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. [p150] The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.
The third reason is the State’s interest — some phrase it in terms of duty — in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. [n45] The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. [p151]
Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life. [n46] Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose. [n47] The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State’s interest in protecting the woman’s health, rather than in preserving the embryo and fetus. [n48] Proponents of this view point out that in many States, including Texas, [n49] by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another. [n50] They claim that adoption of the “quickening” distinction through received common [p152] law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
It is with these interests, and the eight to be attached to them, that this case is concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. at 484-485; in the Ninth Amendment, id. at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454; id. at 460, 463-465 [p153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The [p154] Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) ( sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 800 (Conn.1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (Conn.1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (ND Ga.1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F.Supp. 1385 (ND Ill.1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (Kan.1972); YWCA v. Kuler, 342 F.Supp. 1048 (NJ 1972); Babbitz v. McCann, [p155] 310 F.Supp. 293 (ED Wis.1970), appeal dismissed, 400 U.S. 1 (1970); People v. Belous, 71 Cal.2d 954, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915 (1970); State v. Barquet, 262 So.2d 431 (Fla.1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F.Supp. 587 (ED Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (ED La.1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, ___ Ind. ___, 285 N.E.2d 265 (1972); Spears v. State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S.D. 663, 201 N.W.2d 123 (1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute, and is subject to some limitations; and that, at some point, the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S. at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940); see [p156] Eisenstadt v. Baird, 405 U.S. at 460, 463-464 (WHITE, J., concurring in result).
In the recent abortion cases cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State’s interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State’s determinations to protect health or prenatal life are dominant and constitutionally justifiable.
IX
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute’s infringement upon Roe’s rights was necessary to support a compelling state interest, and that, although the appellee presented “several compelling justifications for state presence in the area of abortions,” the statutes outstripped these justifications and swept “far beyond any areas of compelling state interest.” 314 F.Supp. at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
A. The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, [p157] for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. [n51] On the other hand, the appellee conceded on reargument [n52] that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; [n53] in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application. [n54] [p158]
All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. [n55] This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (WD Pa.1972); Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d 194, 286 N.E.2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F.Supp. 224 (Conn.1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind. at ___, 285 N.E.2d at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff’d sub nom. Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v. Superior Court, 2 Cal.3d 619, 470 P.2d 617 (1970); State v. Dickinson, 28 [p159] Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland’s Illustrated Medical Dictionary 478-479, 547 (24th ed.1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. [p160]
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live’ birth. This was the belief of the Stoics. [n56] It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. [n57] It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. [n58] As we have noted, the common law found greater significance in quickening. Physician and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid. [n59] Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. [n60] The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this “ensoulment” theory from those in the Church who would recognize the existence of life from [p161] the moment of conception. [n61] The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a “process” over time, rather than an event, and by new medical techniques such as menstrual extraction, the “morning-after” pill, implantation of embryos, artificial insemination, and even artificial wombs. [n62]
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth, or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. [n63] That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few [p162] courts have squarely so held. [n64] In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. [n65] Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. [n66] Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches [p163] term and, at a point during pregnancy, each becomes “compelling.”
With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [p164] during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402 U.S. at 67-72.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [p165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
2. The State may define the term “physician,” as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together. [n67]
This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important [p166] state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court’s decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241, 252-255 (1967); Dombrowski v. Pfister, 380 U.S. 479 (1965). We are not dealing with a statute that, on its face, appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris, 401 U.S. at 50.
We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford’s complaint in intervention is dismissed. In all other respects, the judgment [p167] of the District Court is affirmed. Costs are allowed to the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
1.
Article 1191. Abortion
If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By “abortion” is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.
Art. 1192. Furnishing the means
Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
Art. 1193. Attempt at abortion
If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.
Art. 1194. Murder in producing abortion
If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.
Art. 1196. By medical advice
Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not attacked here, reads:
Art. 1195. Destroying unborn child
Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.
2. Ariz.Rev.Stat.Ann. § 13-211 (1956); Conn.Pub. Act No. 1 (May 1972 special session) (in 4 Conn.Leg.Serv. 677 (1972)), and Conn.Gen.Stat.Rev. §§ 53-29, 53-30 (1968) (or unborn child); Idaho Code § 18-601 (1948); Ill.Rev.Stat., c. 38, § 23-1 (1971); Ind.Code § 35-1-58-1 (1971); Iowa Code § 701.1 (1971); Ky.Rev.Stat. § 436.020 (1962); La.Rev.Stat. § 37: 1285(6) (1964) (loss of medical license) (but see § 14:87 (Supp. 1972) containing no exception for the life of the mother under the criminal statute); Me.Rev.Stat. Ann, Tit. 17, § 51 (1964); Mass.Gen.Laws Ann., c. 272, § 19 (1970) (using the term “unlawfully,” construed to exclude an abortion to save the mother’s life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N.E.2d 264 (1969)); Mich.Comp.Laws § 750.14 (1948); Minn.Stat. § 617.18 (1971); Mo.Rev.Stat. § 559.100 (1969); Mont.Rev.Codes Ann. § 94-401 (1969); Neb.Rev.Stat. § 28-405 (1964); Nev.Rev.Stat. § 200.220 (1967); N.H.Rev.Stat.Ann. § 585: 13 (1955); N.J.Stat.Ann. § 2A:87-1 (1969) (“without lawful justification”); N.D.Cent.Code §§ 12-25-01, 12-25-02 (1960); Ohio Rev.Code Ann. § 2901.16 (1953); Okla.Stat.Ann., Tit. 21, § 861 (1972-1973 Supp.); Pa.Stat.Ann., Tit. 18, §§ 4718, 4719 (1963) (“unlawful”); R.I.Gen.Laws Ann. § 11-3-1 (1969); S.D.Comp.Laws Ann. § 22-17-1 (1967); Tenn.Code Ann. §§ 39-301, 39-302 (1956); Utah Code Ann. §§ 76-2-1, 76-2-2 (1953); Vt.Stat.Ann., Tit. 13, § 101 (1958); W.Va.Code Ann. § 61-2-8 (1966); Wis.Stat. § 940.04 (1969); Wyo.Stat.Ann. §§ 6-77, 6-78 (1957).
3. Long ago, a suggestion was made that the Texas statutes were unconstitutionally vague because of definitional deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion peremptorily, saying only,
It is also insisted in the motion in arrest of judgment that the statute is unconstitutional and void in that it does not sufficiently define or describe the offense of abortion. We do not concur in respect to this question.
Jackson v. State, 55 Tex.Cr.R. 79, 89, 115 S.W. 262, 268 (1908). The same court recently has held again that the State’s abortion statutes are not unconstitutionally vague or overbroad. Thompson v. State (Ct.Crim.App. Tex.1971), appeal docketed, No. 71-1200. The court held that “the State of Texas has a compelling interest to protect fetal life”; that Art. 1191 “is designed to protect fetal life”; that the Texas homicide statutes, particularly Art. 1205 of the Penal Code, are intended to protect a person “in existence by actual birth,” and thereby implicitly recognize other human life that is not “in existence by actual birth”; that the definition of human life is for the legislature and not the courts; that Art. 1196 “is more definite than the District of Columbia statute upheld in [United States v.] Vuitch” (402 U.S. 62); and that the Texas statute “is not vague and indefinite or overbroad.” A physician’s abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof under the exemption of Art. 1196 “is not before us.” But see Veevers v. State, 172 Tex.Cr.R. 162, 168-169, 354 S.W.2d 161, 166-167 (1962). Cf. United States v. Vuitch, 402 U.S. 62, 69-71 (1971).
4. The name is a pseudonym.
5. These names are pseudonyms.
6. The appellee twice states in his brief that the hearing before the District Court was held on July 22, 1970. Brief for Appellee 13. The docket entries,App. 2, and the transcript, App. 76, reveal this to be an error. The July date appears to be the time of the reporter’s transcription. See App. 77.
7. We need not consider what different result, if any, would follow if Dr. Hallford’s intervention were on behalf of a class. His complaint in intervention does not purport to assert a class suit, and makes no reference to any class apart from an allegation that he “and others similarly situated” must necessarily guess at the meaning of Art. 1196. His application for leave to intervene goes somewhat further, for it asserts that plaintiff Roe does not adequately protect the interest of the doctor “and the class of people who are physicians . . . [and] the class of people who are . . . patients. . . .” The leave application, however, is not the complaint. Despite the District Court’s statement to the contrary, 314 F.Supp. at 1225, we fail to perceive the essentials of a class suit in the Hallford complaint.
8. A. Castiglioni, A History of Medicine 84 (2d ed.1947), E. Krumbhaar, translator and editor (hereinafter Castiglioni).
9. J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed.1950) (hereinafter Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter Lader), K. Niswander, Medical Abortion Practices in the United States, in Abortion and the Law 37, 38-40 (D. Smith ed.1967); G. Williams, The Sanctity of Life and the Criminal Law 148 (1957) (hereinafter Williams); J. Noonan, An Almost Absolute Value in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed.1970) (hereinafter Noonan); Quay, Justifiable Abortion — Medical and Legal Foundations (pt. 2), 49 Geo.L.J. 395, 40622 (1961) (hereinafter Quay).
10. L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see Castiglioni 227.
11. Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
12. Edelstein 13-14
13. Castiglioni 148.
14. Id. at 154.
15. Edelstein 3.
16. Id. at 12, 15-18.
17. Id. at 18; Lader 76.
18. Edelstein 63.
19. Id. at 64.
20. Dorand’s Illustrated Medical Dictionary 1261 (24th ed.1965).
21. E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31, § 16 (4th ed. 1762); 1 W. Blackstone, Commentaries *129-130; M. Hale, Pleas of the Crown 433 (1st Amer. ed. 1847). For discussions of the role of the quickening concept in English common law, see Lader 78; Noonan 223-226; Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality (pt. 1), 14 N.Y.L.F. 411, 418-428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the Law, 59 J.Crim.L.C. & P.S. 84 (1968) (hereinafter Stern); Quay 430-432; Williams 152.
22. Early philosophers believed that the embryo or fetus did not become formed and begin to live until at least 40 days after conception for a male and 80 to 90 days for a female. See, for example, Aristotle, Hist.Anim. 7.3.583b; Gen.Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat.Puer., No. 10. Aristotle’s thinking derived from his three-stage theory of life: vegetable, animal, rational. The vegetable stage was reached at conception, the animal at “animation,” and the rational soon after live birth. This theory, together with the 40/80 day view, came to be accepted by early Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who made a distinction between embryo inanimatus, not yet endowed with a soul, and embryo animatus. He may have drawn upon Exodus 21:22. At one point, however, he expressed the view that human powers cannot determine the point during fetal development at which the critical change occurs. See Augustine, De Origine Animae 4.4 (Pub.Law 44.527). See also W. Reany, The Creation of the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law Studies No. 162, Washington, D.C.1942).
Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay 426-427. Later, Augustine on abortion was incorporated by Gratian into the Decretum, published about 1140. Decretum Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122, 1123 (A. Friedburg, 2d ed. 1879). This Decretal and the Decretals that followed were recognized as the definitive body of canon law until the new Code of 1917.
For discussions of the canon law treatment, see Means I, pp. 411-412; Noonan 20-26; Quay 426-430; see also J. Noonan, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965).
23. Bracton took the position that abortion by blow or poison was homicide “if the foetus be already formed and animated, and particularly if it be animated.” 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879), or, as a later translation puts it, “if the foetus is already formed or quickened, especially if it is quickened,” 2 H. Bracton, On the Laws and Customs of England 341 (S. Thorne ed.1968). See Quay 431; see also 2 Fleta 661 (Book 1, c. 23) (Selden Society ed.1955).
24. E. Coke, Institutes III *50.
25. 1 W. Blackstone, Commentaries *129-130.
26. Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth Century Legislative Ashes of a Fourteenth Century Common Law Liberty?, 17 N.Y.L.F. 335 (1971) (hereinafter Means II). The author examines the two principal precedents cited marginally by Coke, both contrary to his dictum, and traces the treatment of these and other cases by earlier commentators. He concludes that Coke, who himself participated as an advocate in an abortion case in 1601, may have intentionally misstated the law. The author even suggests a reason: Coke’s strong feelings against abortion, coupled with his determination to assert common law (secular) jurisdiction to assess penalties for an offense that traditionally had been an exclusively ecclesiastical or canon law crime. See also Lader 78-79, who notes that some scholars doubt that the common law ever was applied to abortion; that the English ecclesiastical courts seem to have lost interest in the problem after 1527; and that the preamble to the English legislation of 1803, 43 Geo. 3, c. 58, § 1, referred to in the text, infra at 136, states that “no adequate means have been hitherto provided for the prevention and punishment of such offenses.”
27. Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N.J.L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N.W. 611, 612 (1907); Gray v. State, 77 Tex.Cr.R. 221, 224, 178 S.W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56 S.E.2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C. 630, 632 (1880).
28. See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N.Y. 86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887).
29. Conn.Stat., Tit. 20, § 14 (1821).
30. Conn.Pub. Acts, c. 71, § 1 (1860).
31. N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6, § 21, p. 694 (1829).
32. Act of Jan. 20, 1840, § 1, set forth in 2 H. Gammel, Laws of Texas 177-178 (1898); see Grigsby v. Reib, 105 Tex. 597, 600, 153 S.W. 1124, 1125 (1913).
33. The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern 85-86; and Means II 37376.
34. Criminal abortion statutes in effect in the States as of 1961, together with historical statutory development and important judicial interpretations of the state statutes, are cited and quoted in Quay 447-520. See Comment, A Survey of the Present Statutory and Case Law on Abortion: The Contradictions and the Problems, 1972 U.Ill.L.F. 177, 179, classifying the abortion statutes and listing 25 States as permitting abortion only if necessary to save or preserve the mother’s life.
35. Ala.Code, Tit. 14, § 9 (1958); D.C.Code Ann. § 22-201 (1967).
36. Mass.Gen.Laws Ann., c. 272, § 19 (1970); N.J.Stat.Ann. § 2A: 87-1 (1969); Pa.Stat.Ann., Tit. 18, §§ 4718, 4719 (1963).
37. Fourteen States have adopted some form of the ALI statute. See Ark.Stat.Ann. §§ 41-303 to 41-310 (Supp. 1971); Calif.Health & Safety Code §§ 25950-25955.5 (Supp. 1972); Colo.Rev.Stat.Ann. §§ 40-2-50 to 40-2-53 (Cum.Supp. 1967); Del.Code Ann., Tit. 24, §§ 1790-1793 (Supp. 1972); Florida Law of Apr. 13, 1972, c. 72-196, 1972 Fla.Sess.Law Serv., pp. 380-382; Ga.Code §§ 26-1201 to 26-1203 (1972); Kan.Stat.Ann. § 21-3407 (Supp. 1971); Md.Ann.Code, Art. 43, §§ 137-139 (1971); Miss.Code Ann. § 2223 (Supp. 1972); N.M.Stat.Ann. §§ 40A-5-1 to 40A-5-3 (1972); N.C.Gen.Stat. § 14-45.1 (Supp. 1971); Ore.Rev.Stat. §§ 435.405 to 435.495 (1971); S.C.Code Ann. §§ 16-82 to 16-89 (1962 and Supp. 1971); Va.Code Ann. §§ 18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark described some of these States as having “led the way.” Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L.A.) L.Rev. 1, 11 (1969).
By the end of 1970, four other States had repealed criminal penalties for abortions performed in early pregnancy by a licensed physician, subject to stated procedural and health requirements. Alaska Stat. § 11.15.060 (1970); Haw.Rev.Stat. § 453-16 (Supp. 1971); N.Y.Penal Code § 125.05, subd. 3 (Supp. 1972-1973); Wash.Rev.Code §§ 9.02.060 to 9.02.080 (Supp. 1972). The precise status of criminal abortion laws in some States is made unclear by recent decisions in state and federal courts striking down existing state laws, in whole or in part.
38.
Whereas, Abortion, like any other medical procedure, should not be performed when contrary to the best interests of the patient since good medical practice requires due consideration for the patient’s welfare, and not mere acquiescence to the patient’s demand; and
Whereas, The standards of sound clinical judgment, which, together with informed patient consent, should be determinative according to the merits of each individual case; therefore be it
RESOLVED, That abortion is a medical procedure and should be performed only by a duly licensed physician and surgeon in an accredited hospital acting only after consultation with two other physicians chosen because of their professional competency and in conformance with standards of good medical practice and the Medical Practice Act of his State; and be it further
RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances, good medical practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice.
Proceedings of the AMA House of Delegates 220 (June 1970).
39.
The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion that is performed in accordance with good medical practice and under circumstances that do not violate the laws of the community in which he practices.
In the matter of abortions, as of any other medical procedure, the Judicial Council becomes involved whenever there is alleged violation of the Principles of Medical Ethics as established by the House of Delegates.
40.
UNIFORM ABORTION ACT
SECTION 1. [Abortion Defined; When Authorized.]
(a) “Abortion” means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.
(b) An abortion may be performed in this state only if it is performed:
(1) by a physician licensed to practice medicine [or osteopathy] in this state or by a physician practicing medicine [or osteopathy] in the employ of the government of the United States or of this state, [and the abortion is performed] [in the physician’s office or in a medical clinic, or] in a hospital approved by the [Department of Health] or operated by the United States, this state, or any department, agency, [or political subdivision of either;] or by a female upon herself upon the advice of the physician; and
(2) within [20] weeks after the commencement of the pregnancy [or after [20] weeks only if the physician has reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or mental defect, or (iii) that the pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age of 16 years].
SECTION 2. [Penalty.] Any person who performs or procures an abortion other than authorized by this Act is guilty of a [felony] and, upon conviction thereof, may be sentenced to pay a fine not exceeding [$1,000] or to imprisonment [in the state penitentiary] not exceeding [5 years], or both.
SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among those states which enact it.
SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.
SECTION 5. [Severability.] If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 6. [Repeal.] The following acts and parts of acts are repealed:
(1)
(2)
(3)
SECTION 7. [Time of Taking Effect.] This Act shall take effect _________.
41.
This Act is based largely upon the New York abortion act following a review of the more recent laws on abortion in several states and upon recognition of a more liberal trend in laws on this subject. Recognition was given also to the several decisions in state and federal courts which show a further trend toward liberalization of abortion laws, especially during the first trimester of pregnancy.
Recognizing that a number of problems appeared in New York, a shorter time period for “unlimited” abortions was advisable. The time period was bracketed to permit the various states to insert a figure more in keeping with the different conditions that might exist among the states. Likewise, the language limiting the place or places in which abortions may be performed was also bracketed to account for different conditions among the states. In addition, limitations on abortions after the initial “unlimited” period were placed in brackets so that individual states may adopt all or any of these reasons, or place further restrictions upon abortions after the initial period.
This Act does not contain any provision relating to medical review committees or prohibitions against sanctions imposed upon medical personnel refusing to participate in abortions because of religious or other similar reasons, or the like. Such provisions, while related, do not directly pertain to when, where, or by whom abortions may be performed; however, the Act is not drafted to exclude such a provision by a state wishing to enact the same.
42. See, for example, YWCA v. Kugler, 342 F.Supp. 1048, 1074 (N.J.1972); Abele v. Markle, 342 F.Supp. 800, 805-806 (Conn.1972) (Newman, J., concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250 So.2d 857, 863 (Ervin, J., concurring) (Fla.1971); State v. Gedicke, 43 N.J.L. 86, 90 (1881); Means II 381-382.
43. See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19 (1943).
44. Potts, Postconceptive Control of Fertility, 8 Int’l J. of G. & O. 957, 967 (1970) (England and Wales); Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health Service) (New York City); Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family Planning 5, 7 (1970); Tietze, Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze Lehfeldt, Legal Abortion in Eastern Europe, 175 J.A.M.A. 1149, 1152 (April 1961). Other sources are discussed in Lader 17-23.
45. See Brief of Amicus National Right to Life Committee; R. Drinan, The Inviolability of the Right to Be Born, in Abortion and the Law 107 (D. Smith ed.1967); Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U.C.L.A.L.Rev. 233 (1969); Noonan 1.
46. See, e.g., Abele v. Markle, 342 F.Supp. 800 (Conn.1972), appeal docketed, No. 72-56.
47. See discussions in Means I and Means II.
48. See, e.g., State v. Murphy, 27 N.J.L. 112, 114 (1858).
49. Watson v. State, 9 Tex.App. 237, 244-245 (1880); Moore v. State, 37 Tex. Cr.R. 552, 561, 40 S.W. 287, 290 (1897); Shaw v. State, 73 Tex.Cr.R. 337, 339, 165 S.W. 930, 931 (1914); Fondren v. State, 74 Tex.Cr.R. 552, 557, 169 S.W. 411, 414 (1914); Gray v. State, 77 Tex.Cr.R. 221, 229, 178 S.W. 337, 341 (1915). There is no immunity in Texas for the father who is not married to the mother. Hammett v. State, 84 Tex.Cr.R. 635, 209 S.W. 661 (1919); Thompson v. State (Ct.Crim.App. Tex.1971), appeal docketed, No. 71-1200.
50. See Smith v. State, 33 Me. at 55; In re Vince, 2 N.J. 443, 450, 67 A.2d 141, 144 (1949). A short discussion of the modern law on this issue is contained in the Comment to the ALI’s Model Penal Code § 207.11, at 158 and nn. 35-37 (Tent.Draft No. 9, 1959).
51. Tr. of Oral Rearg. 20-21.
52. Tr. of Oral Rearg. 24.
53. We are not aware that in the taking of any census under this clause, a fetus has ever been counted.
54. When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n. 49, supra, that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?
55. Cf. the Wisconsin abortion statute, defining “unborn child” to mean “a human being from the time of conception until it is born alive,” Wis.Stat. § 940.04(6) (1969), and the new Connecticut statute, Pub.Act No. 1 (May 1972 special session), declaring it to be the public policy of the State and the legislative intent “to protect and preserve human life from the moment of conception.”
56. Edelstein 16.
57. Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For a stricter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion and the Law 124 (D. Smith ed.1967).
58. Amicus Brief for the American Ethical Union et al. For the position of the National Council of Churches and of other denominations, see Lader 99-101.
59. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed.1971); Dorland’s Illustrated Medical Dictionary 1689 (24th ed.1965).
60. Hellman & Pritchard, supra, n. 59, at 493.
61. For discussions of the development of the Roman Catholic position, see D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
62. See Brodie, The New Biology and the Prenatal Child, 9 J.Family L. 391, 397 (1970); Gorney, The New Biology and the Future of Man, 15 U.C.L.A.L.Rev. 273 (1968); Note, Criminal Law — Abortion — The “Morning-After Pill” and Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore.L.Rev. 211 (1967); G. Taylor, The Biological Time Bomb 32 (1968); A. Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial Insemination and the Law, 67 Mich.L.Rev. 127 (1968); Note, Artificial Insemination and the Law, 1968 U.Ill.L.F. 203.
63. W. Prosser, The Law of Torts 335-338 (4th ed.1971); 2 F. Harper & F. James, The Law of Torts 1028-1031 (1956); Note, 63 Harv.L.Rev. 173 (1949).
64. See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Action for Death of Unborn Child, 15 A.L.R.3d 992 (1967).
65. Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360 (1971).
66. Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U.C.L.A.L.Rev. 233, 235-238 (1969); Note, 56 Iowa L.Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame Law. 349, 351-354 (1971).
67. Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we discuss the father’s rights, if any exist in the constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the Texas and the Georgia statutes on their face take no cognizance of the father. We are aware that some statutes recognize the father under certain circumstances. North Carolina, for example, N.C.Gen.Stat. § 14-45.1 (Supp. 1971), requires written permission for the abortion from the husband when the woman is a married minor, that is, when she is less than 18 years of age, 41 N.C.A.G. 489 (1971); if the woman is an unmarried minor, written permission from the parents is required. We need not now decide whether provisions of this kind are constitutional.
January 31, 2009
Prof. Anne Wortham’s Open Letter to America
This woman has a lot to say and she does it very eloquently.
Anne Wortham is Associate Professor of Sociology at Illinois State University and continuing Visiting Scholar at Stanford University’s Hoover Institution. She is a member of the American Sociological Association and the American Philosophical Association. She has been a John M. Olin Foundation Faculty Fellow, and honored as a Distinguished Alumni of the Year by the National Association for Equal Opportunity in Higher Education. In fall 1988 she was one of a select group of intellectuals who were featured in Bill Moyer’s television series, “A World of Ideas.” The transcript of her conversation with Moyers has been published in his book, A World of Ideas . Dr. Wortham is author of The Other Side of Racism: A Philosophical Study of Black Race Consciousness which analyzes how race consciousness is transformed into political strategies and policy issues. She has published numerous articles on the implications of individual rights for civil rights policy, and is currently writing a book on theories of social and cultural marginality. Recently, she has published articles on the significance of multiculturalism and Afrocentricism in education, the politics of victimization and the social and political impact of political correctness. Shortly after an interview in 2004 she was awarded tenure. This article by her is something else.
No He Can’t – – – by Anne Wortham
Fellow Americans,
Please know: I am black; I grew up in the segregated South. I did not vote for Barack Obama; I wrote in Ron Paul’s name as my choice for president. Most importantly, I am not race conscious. I do not require a black president to know that I am a person of worth, and that life is worth living. I do not require a black president to love the ideal of America. I cannot join you in your celebration. I feel no elation. There is no smile on my face. I am not jumping with joy. There are no tears of triumph in my eyes. For such emotions and behavior to come from me, I would have to deny all that I know about the requirements of human flourishing and survival – all that I know about the history of the United States of America, all that I know about American race relations, and all that I know about Barack Obama as a politician. I would have to deny the nature of the “change” that Obama asserts has come to America. Most importantly, I would have to abnegate my certain understanding that you have chosen to sprint down the road to serfdom that we have been on for over a century. I would have to pretend that individual liberty has no value for the success of a human life. I would have to evade your rejection of the slender reed of capitalism on which your success and mine depend. I would have to think it somehow rational that 94 percent of the 12 million blacks in this country voted for a man because he looks like them (that blacks are permitted to play the race card), and that they were joined by self-declared “progressive” whites who voted for him because he doesn’t look like them. I would have to be wipe my mind clean of all that I know about the kind of people who have advised and taught Barack Obama and will fill posts in his administration – political intellectuals like my former colleagues at the Harvard University’s Kennedy School of Government. I would have to believe that “fairness” is the equivalent of justice. I would have to believe that man who asks me to “go forward in a new spirit of service, in a new service of sacrifice” is speaking in my interest. I would have to accept the premise of a man that economic prosperity comes from the “bottom up,” and who arrogantly believes that he can will it into existence by the use of government force. I would have to admire a man who thinks the standard of living of the masses can be improved by destroying the most productive and the generators of wealth.
Finally, Americans, I would have to erase from my consciousness the scene of 125,000 screaming, crying, cheering people in Grant Park, Chicago irrationally chanting “Yes We Can!” Finally, I would have to wipe all memory of all the times I have heard politicians, pundits, journalists, editorialists, bloggers and intellectuals declare that capitalism is dead – and no one, including especially Alan Greenspan, objected to their assumption that the particular version of the anti-capitalistic mentality that they want to replace with their own version of anti-capitalism is anything remotely equivalent to capitalism.
So you have made history, Americans. You and your children have elected a black man to the office of the president of the United States, the wounded giant of the world. The battle between John Wayne and Jane Fonda is over – and that Fonda won. Eugene McCarthy and George McGovern must be very happy men. Jimmie Carter, too. And the Kennedys have at last gotten their Kennedy look-a-like. The self-righteous welfare statists in the suburbs can feel warm moments of satisfaction for having elected a black person. So, toast yourselves: 60s countercultural radicals, 80s yuppies and 90s bourgeois bohemians. Toast yourselves, Black America. Shout your glee Harvard, Princeton, Yale, Duke, Stanford, and Berkeley. You have elected not an individual who is qualified to be president, but a black man who, like the pragmatist Franklin Roosevelt, promises to – Do Something! You now have someone who has picked up the baton of Lyndon Johnson’s Great Society. But you have also foolishly traded your freedom and mine – what little there is left – for the chance to feel good.
There is nothing in me that can share your happy obliviousness.
Justplainbill's Weblog 
E.T. and Shoes
E. T. and Shoes
Posted: 9 Dec 13
Okay, unlike most posts, this one needs an explanation on how I got here. There aren’t any references, this is primarily conjecture, but I’m posting it because of the end-point that it makes.
I was minding my own business with a bit of insomnia. Genny was asleep, so I went into the living room, turned on the TV with sound so low that only Pipper and I could hear it, and started surfing through the channel guide of hundreds of channels. When I hit the history channel sequence, all of them, including the Military History Channel, had aliens as the historical subject. They ranged from Hitler’s secret alien treaties, through Meso-American alien subjugation, and how Egyptians had been enslaved by aliens and forced to mine for gold to be exported to wherever.
Now, in order to understand most of my other posts, I have researched many things, across many cultural and chronological divides. Among the many things not mentioned in them, is an understanding of language, especially written languages. Some examples include that The Torah, the first 5 books of the Old Testament of the Judeo-Christian Bible, was originally an oral history. When it was scripted, it included most of the entire Old Testament, which included the different enslavements such as the Babylonian Exile. When it was translated into the Greek, it was slightly altered because of language, grammar, enunciation/ pronounciation symbols, and cultural nuances.
Translated again into the Latin, then the King Henry VIII, then into the popular King James, and now you can get a Catholic version as well as a contemporary translation. These various nuance alterations, according to my research, have led to such anomalies as the original, ‘thou shall not commit murder,’ has been altered to, ‘thou shall not kill’. Thus, these present as two entirely different commands. Conceptual anomalies caused by cultural and chronological contextual dyspepsia causing misunderstandings are commonplace. Sorry, but it is true of almost all documentation not properly translated, or whose interpretations are being expressed by amateurs.
Another, and this is key to my final supposition, is that there are three forms of written language: phonetic, syllabic, and glyph.
A phonetic, written, language is when each uttered sound has a distinct symbol. What you are reading is phonetic. If you open the ‘symbols’ menu, you’ll see phonetics for Roman symbols which include such symbols as, ǟ, ǧ, ǰ, ȍ, the Cyrillic-/Copt alphabet, Ʃ, œ, æ, ɸ, and even Thai, Ԅ, Ԋ, Ԑ, ฿. Phonetic alphabets run from about 18 symbols to 98 symbols and more if you count each and every enunciation mark possible. Syllabic have between 350 symbols and near 900, while glyphs run into the thousands of symbols.
A syllabic alphabet is one where each symbol represents a complete syllable. Words’ font set doesn’t include one, however, you’ve seen several of these as they are mostly Meso-American, e.g., Incan, Aztec, and Mayan. All of those symbols on the kiosks and obelisks at Machu Pichu are syllablic symbols which are rendered into sentences and extended sentences, which are not run-ons, but a form of quasi-paragraphs, but I’m ignorant and may have that part incorrect.
A glyph script is Chinese or Egyptian. Each symbol is a complete word. If you need a larger explanation and are unsatisfied with that in a language dictionary, leave a comment and I’ll see what I can do to clear it up for you.
Now, I surf through the different shows and note that all of the pro-alien intervention proofs have several same themes including the heavily relied upon one of symbols depicting spacemen.
Most of these proofs are for syllabic languages. Meso-American syllabic languages are read in spirals. Enunciation marks in some of these languages are made by emphasizing a particular portion of the symbol. Various artists marked their works by being artistic, much as you and I do when we put a smiley face inside the letter O, or otherwise creating unique and personal symbols when we write. Thus, what may be a sentence saying, “In the 5th year of the reign of Motormouth … “ in a syllabic language, may look like a head in a space suit, not a depiction of an alien screaming in pain or enslaving the locals. Except for the possibility that the Bhagavad-Gita may actually deal with aliens instead of Hindu Gods, the interpretations that these are spacemen is false based on both the scripting of syllabic languages and the lack of contextual local history.
Now, if I were to look to the probability of alien intervention, here’s where I’d look: evolutionary evidence of dissimilarities between Man and other land defined mammals.
And, what I find, is that man may very well have been altered by E.T.’s!
Shoes! Look at all other land mammals and you will find calloused pads or hooves at the end of all other land mammals’ feet! Chimps, gorillas, horses, dogs, cats, sheep, cattle, birds (avians in general, and, if you think about it, they are land defined as they spend less than 50% of their lives in flight), mice, rabbits, deer, &c.
None require shoes!
And, callouses, or the precursors of pads/ hooves, are a common aspect of all mammals. Look at the bottom of your own feet. Look at your hands, elbows, and knees. In fact, during the pre- and early industrial ages, miners had callouses so hard and permanent that they were called carbuncles. Look at the feet of all of those African Olympic runners who train without shoes and see those callouses.
And so, under what circumstances did man develop shoes, when even today, we’d properly have callouses that should develop into pads or hooves. Hooves, as carbuncles indicate, we could easily develop material that hard, at the bottom of our feet. Consider how hard your nails are!
Ok, so here’s where I really got lost: the only environmental circumstance that I could think of where shoes are an evolutionary necessity, is in zero gravity, which suggests space travel as a cultural/ commercial/ reality for an extended period of time.
So, are shoes the missing proof of alien intervention in Man’s development?
I got this far, and decided that the intellectual level of those programming all of those broadcast and entertainment channels, must be below that of my beagle, Pipper. It’s no wonder that infomercials have so many viewers. They, at the least, assume that their audience has the intellectual capacity to understand that the product being hawked may be of some use to them!