The Immigration and Nationality Act of 1952 (INA) provides for several employment-based immigrant visa classifications, most of which have built-in protections for the U.S. labor market. Indeed, employment-based immigration generally requires either a strong showing that the foreign worker is one of the best in the field or that there are no U.S. workers who are able, willing, available, and qualified to fill the position. The categories are as follows:
The law allocates approximately 120,000 visas per year to these categories in total. Within each category, a certain percentage (7 percent) of the authorized total is designated as a ceiling number. This means that after that number is reached, individuals born in a particular country may not receive visas in a given fiscal year.
It is important to note that this seven percent number is not a per-country allocation, since allowing the nationals of every country to receive seven percent of 40,040 (or 2,802+) would quickly exceed the total number authorized by Congress. For purposes of numerical control, visas are charged against one’s place of birth abroad, not place of citizenship (there are four exceptions, known as “cross-chargeability.”) Until January 2005, visas for the first three employment-based preferences remained available—in other words, the supply is deemed to be “current ” with the known demand. For most of the period since October 1, 1991, when the current law (and numerical system) went into effect, the EB-1 and EB-2 categories rarely reached the per-country ceiling (or cap). Notable exceptions were during the summer of 2001, the EB-3 and even EB-2 categories were oversubscribed for natives of India and the People’s Republic of China.
To partially ameliorate the selective negative impact caused by the occasional occurrence of this supply-demand disparity, Congress passed, among other benefits, Section 104 of the American Competitiveness in the 21st Century Act (AC21), which provides for recapture of unused immigrant visas from fiscal years 1999 and 2000 as well as to remove the per country limit in any calendar quarter in which overall applicant demand for employment-based visa numbers is less than the total of such numbers available. This created a “pool” of 130,107 numbers for these preferences. Approximately 101,000 of these “pool” numbers remained available for use during FY2005.
Additionally, changes in USCIS processing procedure during the past few years created a significant backlog of cases and a consequent reduction in demand for numbers. This was one of the primary reasons the employment-based categories had remained “Current” while many tens of thousands of applicants have become eligible to file for adjustment of status.
FIRST PREFERENCE—PRIORITY WORKERS
INA (Immigration & Nationality Act) §203(b)(1) allocates 28.6 percent of the total number of employment-based immigrant visas per year to priority workers in three subcategories, which together comprise the EB-1 classification:
workers of extraordinary ability;
outstanding professors and researchers; and
multinational executives and managers.
There is no allocation of the available visas among these three subcategories of priority workers; they are made available to the three subcategories within the EB-1 category on a first-come, first-served basis. When evaluating whether a worker qualifies for any of the EB-1 subcategories, the following should also be considered:
The EB-2 category for individuals of exceptional ability in the sciences, arts, or business under INA §203(b)(2); and
Workers of exceptional ability in the sciences or arts or performing arts under Schedule A, Group II, codified at INA §212(a)(5)(A)(ii)(II).
Aliens of Extraordinary Ability
The regulations define extraordinary ability as a level of expertise indicating that the individual is one of a small percentage who has risen to the very top of the field of endeavor. Workers of extraordinary ability are defined by statute as those who have extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation.
A. No Job Offer or Labor Certification Requirements
One of the main advantages of classifying an individual as an EB-1 worker of extraordinary ability is that neither a job offer nor a labor certification is required. Although an employer may petition for an EB-1 worker of extraordinary ability, the alien can also petition for him- or herself (self-petition) without a job offer or a petitioning employer.
Whether the petitioner is an employer or the alien, the petition must include evidence that the individual will continue to work in the United States in the area of his or her expertise. Such evidence includes:
1. Letters from prospective employers;
2. Evidence of prearranged commitments for employment; or
3. A description of how he or she will continue to work in the field in the United States.
B. How Does One Qualify for Extraordinary Ability Status?
To qualify as an individual of extraordinary ability, the foreign national must show that his or her accomplishments have been recognized in the field of endeavor, and that the individual has received acclaim for those accomplishments. The regulations permit a showing made through a single achievement, such as receipt of a major, internationally recognized award like a Nobel or Pulitzer Prize or other internationally recognized prizes. Since very few individuals have won the Nobel Prize, the regulations provide for alternative evidence if the worker has not received a single, internationally recognized award. To satisfy the alternative requirements, the alien still must make a showing of sustained recognition on either a national or international level. Moreover, the petition must include persuasive documentation in at least three of the following areas:
1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
2. Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
3. Published material about the alien in professional or major trade publications or other media;
4. Evidence that the alien is a judge of the work of others in the field;
5. Evidence of the alien’s original contributions of major significance to the field;
6. Authorship of scholarly articles;
7. Display of the alien’s work at artistic exhibitions or showcases;
8. Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
9. Evidence that the alien commands high remuneration in relation to others in the field; or
10. Evidence of commercial success in the performing arts.
If the above criteria do not apply, the regulations also allow for “other comparable evidence.”
EB-1 vs. Schedule A, Group II
In practice, the EB-1 extraordinary ability category seems easier to satisfy than Schedule A, Group II. First, the EB-1 category completely sidesteps the job offer and the need for an employer petitioner. Schedule A, Group II, however, requires an employer and a firm job offer. Second, EB-1 extraordinary ability may be established by satisfying three of ten criteria. The extraordinary ability criteria also allow a showing of either national or international acclaim or achievement. Schedule A, Group II, on the other hand, emphasizes only international acclaim and requires that the petitioner satisfy two of only seven criteria for exceptional ability in sciences or arts (excluding performing arts which has a separate list of six representative types of evidence but does not specify the number that must be satisfied). Additionally, under Schedule A, Group II, the alien’s work during the past year and the intended work in the United States both require exceptional ability. However, just as in the EB-1 category, Schedule A, Group II classification requires separate and independent evidence of exceptional ability through documentation of current widespread acclaim and international recognition by other experts. 30
The practitioner should consider the foreign national’s background and work in the United States to determine the best strategy for filing under the EB-1 extraordinary ability category or Schedule A, Group II, and in addition should consider the outstanding researcher category discussed below. Each of these categories requires much the same evidence, although strategic considerations should include an evaluation of whether the foreign national’s work requires exceptional ability (for Schedule A, Group II petitions), or is research-oriented (for an outstanding researcher petition). The petitioner may want to consider filing petitions for the same person in all three categories since they require the same type of evidence. In its final permanent labor certification rule, the Department of Labor retained and even expanded Schedule A, Group II because it was persuaded that some foreign nationals who qualify in this group might not qualify for priority worker status as individuals of extraordinary ability.
USCIS examiners adjudicating EB-1 extraordinary ability petitions look for a showing that the extraordinary ability worker will substantially benefit the United States. Additionally, an opinion issued by legacy INS General Counsel imposes limitations on the scope of the extraordinary ability category. According to the opinion, professionals do not qualify for EB-1 extraordinary ability status unless the profession in which they are engaged can be categorized as being in the arts, sciences, business, education, or athletics.
USCIS Form I-140, Immigrant Petition for Alien Worker, is required. It may be filed by the foreign national as a self-petitioner or by an employer. In either case, like all other Form I-140 petitions, the EB-1 petition must be filed at the USCIS service center with jurisdiction over the place where the individual will work. This is true unless the employer has been accepted for central filing under sole jurisdiction of a particular service center. The petition packet must include the Form I-140 and the required documentary evidence. Each service center publishes specific filing guidelines
Outstanding Professors and Researchers
The second subcategory of priority workers is for outstanding professors and researchers. These workers are professors and researchers who are internationally recognized for their outstanding achievements.
To qualify as an outstanding professor or researcher, the foreign national must:
1. Be internationally recognized as outstanding in a specific academic field;
2. Have a minimum of three years of experience in teaching and/or research in that field; and
3. Enter the United States in a tenure or tenure-track teaching or comparable research position at a university or other institution of higher education, or in a comparable research position with a private employer under certain circumstances.
Research positions must be permanent.
A permanent position is defined at 8 CFR §204.5(i)(2) as tenured, tenure-track, or for a term of indefinite or unlimited duration with the expectation of continued employment, unless there is good cause for termination. Thus, an offer of employment that is of indefinite duration, but terminable at will, likely satisfies the requirement of permanent employment.
The employer need not be a university or educational institution. The employer can be a private company, but it must employ at least three full-time researchers. The private employer also must have documented accomplishments in an academic field.
Although one would normally expect outstanding researchers and professors to have Ph.D. degrees, neither the statute nor regulations require possession of a doctorate. Furthermore, an alien who qualifies as an outstanding professor can be offered a position as a researcher and vice versa.
Three Years’ Experience
The outstanding professor or researcher must have at least three years experience. However, the requisite three years can include pre-degree research experience gained while working on the advanced degree, so long as the alien completed the degree and the pre-degree research experience is recognized as outstanding. In addition, pre-degree teaching experience is acceptable if the individual has acquired the degree, and had full responsibility for the course. Nothing in the statute or regulations precludes reliance on experience gained with the petitioning employer. Additionally, any combination of teaching or research totaling three years will serve to meet the experience requirement.
How Does One Demonstration International Recognition for Outstanding Achievements?
The outstanding professor or researcher must satisfy at least two of the following criteria:
1. Receipt of major prizes or awards in the field;
2. Membership in associations that require outstanding achievements;
3. Published material in professional journals written by others about the alien’s work;
4. Participation as a judge of the work of others in the same or an allied field;
5. Original scientific or scholarly research contributions to the field; or
6. Authorship of scholarly books or articles in scholarly journals with international circulation in the field.
In a letter dated June 15, 1995, legacy INS stated that the regulations require a petition in this subcategory to be accompanied by evidence that the beneficiary is internationally recognized as outstanding in a particular academic field. 40 In discussing the requirements of 8 CFR §204.5(i)(3)(i), the letter explained:
The listed types of evidence serve as guidelines for the adjudicator and the petitioner. The ultimate determination, however, is whether, through the evidence submitted, the petitioner establishes that the beneficiary is a researcher or professor who is recognized internationally as outstanding. The beneficiary may well be stronger in one evidentiary area than in another. Nevertheless, the overall impression should be that the alien fits the classification. Mere presentation of evidence which relates to two of the listed criteria does not guarantee an approval. The evidence must be weighed and evaluated. If the director determines that the evidence submitted does not fully establish eligibility for this classification or raises underlying questions regarding eligibility, the director may request additional evidence.
USCIS Form I-140, Immigrant Petition for Alien Worker, must be filed with the USCIS service center having jurisdiction over the place of employment. However, unlike the EB-1 worker of extraordinary ability, the outstanding professor or researcher cannot self-petition; the employer must file the petition. If the professor or researcher switches employers, the new employer must file a new Form I-140 petition.
Certain Multinational Executives and Managers
The third subcategory of the EB-1 classification is reserved for executives and managers of foreign companies who are transferred to the same or a related company in the United States.
The requirements for this classification closely track those for nonimmigrant (L-1A) intracompany transferees. A multinational manager or executive may qualify for priority worker status if he or she has been employed outside the United States in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition, or, in the case of a foreign worker presently in the United States, one of the three years preceding entry to the United States as a nonimmigrant. The regulations (but not the statute) require the qualifying employment to have been outside the United States and in a managerial or executive capacity. The past employment must have been with the same employer, an affiliate, or a subsidiary of the employer. The foreign worker must be coming to work in an executive or managerial capacity. Finally, the U.S. employer must have been doing business in the United States for at least one year.
The Qualifying Multinational Relationship
The petitioner must be a U.S. employer that is an affiliate, a subsidiary, or the same employer as the firm, corporation, or other legal entity that employed the alien abroad.
The definitions of affiliate and subsidiary in the regulations are comparable to those found in the L-1 intracompany transferee regulations. An “affiliate” is defined as one of two subsidiaries that is owned or controlled by the same parent or individual, or by a group of individuals, so long as each individual owns and controls approximately the same share or percentage of each entity. The term “affiliate” also includes certain international accounting firms that market accounting services under an internationally recognized name. Subsidiaries include direct or indirect ownership of at least half of another entity, ownership of 50 percent of a 50-50 joint venture with equal control and veto power, or ownership of less than 50 percent of an entity with de facto control.
Managerial or Executive Capacity
Both the beneficiary’s qualifying experience and the position offered in the United States must be in a managerial or executive capacity. The definitions of manager and executive are critical in formulating a case. Managerial capacity is an assignment in which the employee primarily:
(a) manages the organization or a department, subdivision, function, or component of the organization;
(b) 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;
(c) 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
(d) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
A managerial position does not necessarily require management of staff; management of a function is sufficient. The regulations do specify that first-line supervisors, even if directly managing the work of subordinate employees, are not deemed to meet the definition of managerial capacity unless those supervised are professionals. Executive capacity means an assignment within an organization in which the employee primarily:
(a) directs the management of the organization, or a major component or function of the organization;
(b) establishes the goals and policies of the organization, component, or function;
(c) exercises wide latitude in discretionary decision making; and
(d) receives only general supervision or direction from high-level executives, the board of directors, or stockholders of the organization.
USCIS Form I-140, Immigrant Petition for Alien Worker, is filed with the USCIS service center having jurisdiction over the place of employment. The employer must file the petition.
SECOND PREFERENCE— MEMBERS OF PROFESSIONS HOLDING ADVANCED DEGREES OR INDIVIDUALS OF EXCEPTIONAL ABILITY IN THE SCIENCES, ARTS, OR BUSINESS
By statute, 28.6 percent of the total number of employment-based immigrant visas available each year are allocated to second-preference workers. There are two subcategories of the second preference, which together comprise the EB-2 classification:
1. workers who are members of the professions holding advanced degrees or their equivalent, and
2. workers who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.
The legacy INS General Counsel issued an opinion in January 1995, stating that the EB-2 classification includes athletics. 58 There is no allocation of the available visas according to subcategory.
The regulations for second-preference workers are found at 8 CFR §204.5(k).
Members of the Professions Holding Advanced Degrees
Any U.S. employer can file a petition in this category when the job requires an advanced degree and the alien possesses such a degree. An advanced degree is defined as any degree beyond the baccalaureate.
Professions include, but are not limited to, the occupations listed in INA §101(a)(32), as well as any occupation for which a U.S. baccalaureate degree or foreign degree equivalent is the minimum requirement for entry into the occupation.
As an alternative means of qualifying as an advanced degree professional, a baccalaureate degree plus five years of progressive experience in the field can serve as the equivalent of a master’s degree. A foreign national must have earned a baccalaureate degree, and may not qualify as an advanced degree professional utilizing work experience in lieu of both the baccalaureate and master’s level education; nor may experience substitute for a doctoral degree.
“Progressive experience” is defined neither by statute nor by regulation. In response to recent litigation, in which legacy INS was sued for denying Form I-140 petitions involving labor certification requirements of a master’s degree or equivalent, 64 legacy INS provided some guidance on the issue.
In a memorandum dated March 20, 2000, Michael D. Cronin, Acting Associate Commissioner, Office of Programs and William R. Yates, Deputy Executive Associate Commissioner, Office of Field Operations, offered the following:
A petitioner seeking classification for an EB-2 advanced degree professional must clearly demonstrate that the position requires … an employee with either a master’s degree or a U.S. baccalaureate or foreign equivalent degree followed by at least five years of progressive experience in the specialty . . . . Progressive experience is demonstrated by advancing levels of responsibility and knowledge in the specialty.
Who Qualifies as Workers of Exceptional Ability?
For the purpose of showing eligibility for EB-2 classification as a worker of exceptional ability in the sciences, arts (including athletics), or business, the individual must have a degree of expertise significantly above the ordinary. This is established by satisfying at least three of the following six criteria:
1. an official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
2. at least 10 years of full-time experience in the occupation documented by letters from current or past employers;
3. a license to practice the profession or certification for the particular profession or occupation;
4. evidence that the alien has commanded a salary or other remuneration for services demonstrating exceptional ability;
5. membership in professional associations (there is no requirement that the professional associations require outstanding achievement for admission); or
6. recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Other comparable evidence is also acceptable.
Procedures—The petitioner must file USCIS Form I-140, Immigrant Petition for Alien Worker, for an EB-2 worker at the USCIS service center having jurisdiction over the place of employment. As a general rule, the petition must include a certified individual labor certification from the DOL, with evidence that the individual meets the requirements for the job set forth in the labor certification.
Exception to Labor Certification Requirement
There are two exceptions to the labor certification requirement. If the foreign national will serve the national interest, labor certification may be waived. If the foreign national worker is claiming exceptional ability and seeking a waiver of the labor certification requirement, then the foreign national or anyone in the foreign national’s behalf may be the petitioner. To apply for the national interest waiver from the labor certification requirement, the petitioner must submit Form I-140, together with Form ETA-9089 available at www.plc.doleta.gov (PERM website), Statement of Qualifications of Alien, in duplicate, and evidence to support the claim that such exemption would be in the national interest. The national interest waiver is discussed in greater detail below.
The second exception to the labor certification requirement is for workers under the Department of Labor’s Schedule A found at 20 CFR §§656.5 and 656.15. Petitions under Schedule A, Group II for individuals of exceptional ability are not limited to the second preference category, and there is no specific box to check on the I-140 petition. The petitioner should check the preference category box on Form I-140 that corresponds to the minimum education, training and experience required of the position, and should clarify in parentheses that the case is being filed under Schedule A, Group II.
Labor Certification or Schedule “A” Application
As a general rule, EB-2 petitions must be accompanied by an approved individual labor certification. Exceptions to the labor certification requirement (referred to as precertification) are available for positions under Schedule A, Group I and Group II occupations.
To qualify for Schedule A, Group II, in the sciences or arts (excluding the performing arts) an individual must submit: (1) evidence testifying to his or her current widespread acclaim and international recognition; (2) documentation showing that his or her work during the past year required, and his or her intended work will require, exceptional ability; and (3) evidence from at least two of the following seven categories:
1. receipt of international prizes or awards for excellence in the field;
2. membership in international organizations that require outstanding achievement of their members;
3. published material about the alien relating to the alien’s work in professional publications;
4. evidence of the alien’s participation as a judge of the work of others in the same or an allied field;
5. original scientific or scholarly research contributions of major significance in the field;
6. authorship of scientific or scholarly articles in the field in professional journals with international circulation; or
7. display of the alien’s work at artistic exhibitions in more than one country.
To qualify for Schedule A, Group II, in the performing arts an individual must submit: (1) evidence that the alien’s work experience during the past 12 months did require and the intended employment will require exceptional ability, and (2) documentation to show this exceptional ability, such as:
documentation attesting to current widespread acclaim and international recognition and receipt of international prizes or awards for excellence;
published material by or about the alien, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (with title, date, and author);
evidence of earnings commensurate with the claimed level of ability;
playbills and star billings;
documents attesting to the outstanding reputation of theaters, concert halls, nightclubs, and other venues in which the alien has appeared or is scheduled to appear; and/or,
documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the alien has performed during the past year in a leading or starring capacity.
National Interest Exemption from Job Offer and Labor Certification
National Interest Waiver
The National Interest Waiver (NIW) is a waiver of the job offer requirement for individuals who wish to immigrate to the United States in the second preference category who are members of the professions holding advanced degrees or individuals of exceptional ability in the arts, sciences, or business.
Neither the INA nor the governing regulations define “national interest,” but a waiver request requires a showing “significantly above that for prospective national benefit.” In a nonprecedent decision, the legacy INS enumerated factors to consider in evaluating the “national interest.” However, the number of national interest waiver cases approved has been greatly limited following the August 7, 1998 precedent decision by the Administrative Appeals Office (AAO) in Matter of New York State Department of Transportation (NYSDOT ). The self-petitioner in NYSDOT was a civil engineer employed since 1993 by the New York State Department of Transportation. The petitioner held an M.S. in Civil Engineering (Structures) from Iowa State University with expertise in the “prestressed concrete construction and design of post-tensioning and of curved bridges.” The application was initially denied by the Vermont Service Center and then by the Acting Associate Commissioner for Programs in Washington, DC. The decision is lengthy, but the standards for approval of a national interest waiver may be stated in a three-part test:
it Must Be Shown That the Alien Seeks Employment in an “Area of Substantial Intrinsic Merit”INS/USCIS has not explained how satisfaction of this prong should be determined. In NYSDOT , however, the AAO held that the engineering of bridges fulfills the criteria.
it Must Be Shown That the Proposed Benefit is “National in Scope”The impact from the activity must be felt on a national scale. The AAO held that although the alien’s employment was limited to a specific geographical area, New York’s bridges and roads connect to the state and national transportation system. The AAO went on to state that the proper maintenance and operation of these bridges and roads serve the interest of other regions of the United States.
the Petitioner Seeking the Waiver Must Persuasively Demonstrate That the National Interest Would Be Adversely Affected if Labor Certification Were Required for the Alien—The AAO opined that “an alien seeking exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.” The AAO went on to state, “with regard to the unavailability of qualified workers, the job offer based on national interest is not warranted solely for the purpose of ameliorating a local labor shortage.”
After reviewing the evidence presented in NYSDOT , the Administrative Appeals Office concluded that the petitioner had not met the last requirement. NYSDOT has deeply affected the INS’s/USCIS’s consideration of petitions requesting national interest waiver of the job offer. While the decision purported to provide definition to the term “national interest,” it has resulted in as much confusion as existed before the decision. NIW petitions continue to be approved by USCIS, but with variance in adjudication standards among USCIS’s four regional service centers. Practitioners should carefully evaluate a foreign national worker’s eligibility under the current NIW standards, as well as regional differences inherent in USCIS, when determining the viability of a petition requesting a national interest waiver of the job offer and labor certification requirement.
THIRD PREFERENCE—SKILLED WORKERS, PROFESSIONALS, AND OTHER WORKERS
By statute, 28.6 percent of the total number of employment-based immigrant visas per year are allocated to third preference workers in three subcategories:
1. skilled workers (at least two years of experience required);
2. professionals (baccalaureate degree required for position and alien); and
3. other workers (less than two years’ experience required for position).
For purposes of determining availability of visas, there is no allocation between professionals and skilled workers.
Backlog of Visas for EB-3 Workers
There is a perennial backlog of visas for EB-3 “other workers.” However, after several years of current visa availability for the first three preferences, there is currently a backlog for EB-3 visas from China, India, and Philippines.
The regulations for EB-3 workers are found at 8 CFR §204.5(l).
Skilled workers are those in positions that require a minimum of two years of training or experience. Relevant post-secondary education counts as training. The requirements of the job offer as stated on the Application for Permanent Employment Certification (Form ETA-9089) determine whether a job is skilled or unskilled. In drafting labor certifications, the employer should determine whether the job matches a position in the O*NET Occupations available online at www.flcdatacenter.com and that the Job Zone be at least a 3 (corresponding to a Specific Vocational Preparation Code of greater than 6 and less than 7 from the old Dictionary of Occupational Titles (two to four years’ experience required) so the position will be classified as a skilled one. If the position is precertified under Schedule A, the petitioner must show—by either industry standards or its own past practice—that the job requires at least two years of experience.
Professionals must possess a baccalaureate degree or foreign degree equivalent, and the petitioner must demonstrate that such a degree is the normal requirement for entry into the occupation. Unlike the EB-2 advanced degree professional category or the nonimmigrant H-1B category, there is no provision for equivalency to a baccalaureate degree based upon a combination of education and experience at the EB-3 professional level. Thus, if the ETA-9089 form specifies a minimum educational level of “bachelor’s degree or equivalent,” an alien will not qualify for EB-3 classification as a professional if he or she lacks a bachelor’s or a foreign degree evaluated as the equivalent to a U.S. bachelor’s degree.
Other workers include those whose positions require less than two years of higher education, training, or experience. In early 2004 there was no backlog in this category; however, the number of “other workers” immigrant visas have traditionally backlogged substantially. To offset visa numbers allocated under the Nicaraguan and Central American Relief Act (NACARA), the annual numerical limit of 10,000 in this category is subject to a temporary reduction of 5,000 numbers, beginning once a cut-off date of November 19, 1997, is applied to the other worker category. Practitioners should be aware that waiting periods in this category have exceeded ten years in the recent past. A practitioner should work closely with the foreign national and a sponsoring employer to determine if alternative routes to permanent residence exist for the foreign national.
Procedures —USCIS Form I-140, Immigrant Petition for Alien Worker, must be filed with the USCIS service center having jurisdiction over the place of employment. A labor certification or Schedule A application, as well as a permanent, full-time job offer, is required for all Form I-140 petitions requesting EB-3 classification. There are no exceptions. The petition should also include evidence that the individual meets the requirements for the job set forth in the labor certification.
OTHER ISSUES Concurrent Filing
On July 31, 2002, the legacy INS published an interim rule allowing for concurrent filing of a Form I-140 immigrant visa petition with the foreign national’s Form I-485 application for adjustment of status in certain circumstances. Concurrent filing is permitted when an immigrant visa is immediately available to the foreign national, or would be immediately available if the I-140 petition were approved on the date of filing. With the retrogression of employment-based categories, the practitioner must be careful to determine visa availability prior to a concurrent filing.
Filing Petitions in More Than One Category
It is sometimes an appropriate strategy to file two immigrant petitions in the alternative, such as an EB-1 worker of extraordinary ability, and an EB-2 worker who will serve the national interest. In some cases, the sponsoring employer may wish to proceed with labor certification while an EB-1 or EB-2 petition is pending. The regulations do not limit the number of immigrant petitions that may be filed on behalf of a foreign national worker.
In the past, immigrant visas have been available under the third preference, but not under the second preference. In such an instance, a third-preference visa petition can be submitted for “second preference” applicants to take advantage of the fact that visas are currently available under the third preference, a category for which they also qualify.
If an individual labor certification is required, the priority date is the date the request for labor certification is accepted for processing at www.plc.doleta.gov or at the DOL Application Processing Center serving the state where the job is located. Otherwise, the priority date is the date the Form I-140 visa petition is properly filed with USCIS. The priority date attaches to the foreign national upon approval of the I-140 immigrant petition. Approved Form I-140 petitions are valid indefinitely unless revoked. However, practitioners should be aware that priority dates may be lost through such occurrences as failure to timely respond to DOL or USCIS requests for evidence during processing, employer’s notice of withdrawal due to lack of intent to employ the alien following approval of adjustment of status, or automatic revocation of Form I-140 petition due to termination of employer’s business.
Ability to Pay Wage
Any immigrant petition filed by a U.S. employer must include evidence that the employer was able to pay the offered wage as of the alien’s priority date. This evidence may consist of the employer’s annual report, federal income tax return, or audited financial statements. If the petitioner has more than 100 employees, a statement from the organization’s financial officer will suffice.
This requirement can cause difficulty in startup companies that show substantial growth between the time of filing and the completion of the process. The regulations permit some flexibility because they allow petitioners to submit additional evidence such as profit/loss statements, bank account records, or personnel records. The petitioner should be prepared to submit evidence of ability to pay the salary as of the date the labor certification was filed, as well as the date of filing Form I-140.
Significantly, the AAO has broadened its view of the “ability to pay” by holding that as long as the employer is actually paying the proffered wage when the priority date is established, the case should not be denied for lack of financial ability to pay the proffered wage.
Finally, in a recent memorandum from USCIS, William R. Yates stated that USCIS adjudicators should make a positive ability to pay determination in any one of the following circumstances:
1. net income – Petitioner’s net income is equal to or greater than the proffered wage;
2. net current assets – Net current assets are equal to or greater than the proffered wage; or,
3. employment of the beneficiary – The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage.
Thus, where the foreign worker has been employed by the employer, copies of payroll checks, W-2 forms, and/or the beneficiary’s tax returns substantiating that the foreign worker has actually been paid the proffered wage, should evidence the employer’s ability to pay such wage. Beware: If the foreign worker has been employed without authorization, this might expose the employer to an I-9 investigation.
Portability of Certain Green Card Cases in Final-Stage (Form I-485) Processing
AC21 §106(c) generally permits employment-based adjustment of status applicants, whose I-485 applications have been pending for more than 180 days and which remain unadjudicated, to change jobs and/or employers as long as they remain in the same or a similar occupational classification. Thus, an alien with an application for adjustment of status may “port” to another employer or location provided the still-pending Form I-485 remains unadjudicated for 180 days or more. Although USCIS has yet to issue regulations relating to AC21, it has issued two internal guidance memoranda as interim procedures until regulations are promulgated. These William R. Yates memoranda were written August 4, 2003, and May 12, 2005.
Significantly, USCIS has retreated from its earlier position that if Form I-140 and Form I-485 were filed concurrently, Form I-140 must be approved before an employee may “port” to a new job or new employer. According to the 2005 memorandum, the Form I-140 petition will remain valid even where the foreign national changes jobs or employers while remaining employed in the same or a similar occupational classification as long as the Form I-485 has been pending 180 days. In these circumstances, USCIS is to determine whether the Form I-140 is or was approvable but for the ability to pay and, if so, to approve the petition and adjudicate the I-485 and determine whether the new position is the same or similar occupational classification.
The current guidance also makes it clear that:
USCIS will look to the DOT code and/or SOC code to determine “same or similar” occupation;
geographic location of the new employment is not relevant;
a difference in the wage offered is not relevant unless it is significant suggesting that the position may not be the “same or similar” occupation;
the portability provisions of AC21 are available to multinational managers and executives, even to unrelated businesses;
ability to pay is not relevant with regard to the new employer (except to determine legitimacy of the job offer);
an individual can “port” to self-employment (however, this could raise questions about the intent of the parties at the time of filing the application for labor certification);
porting prior to the Form I-485 pending more than 180 days cannot be the sole basis for denial (however, this could raise questions about the intent of the parties at the time of filing the application for labor certification);
an I-140 petition is no longer valid for porting purposes when it is withdrawn before the Form I-485 has been pending less than 180 days or when it is denied or revoked at any time (unless the revocation was based on a withdrawal made after the Form I-485 had been pending 180 days); and,
a new job offer is required in the “same or similar” occupation at the time the Form I-485 is being adjudicated under the adjustment portability provisions.
Interestingly, although the employer must intend to employ the foreign national at least through the approval of the I-140 petition, there is no requirement that the beneficiary of the I-140 actually be employed until permanent residence is authorized, and that it is therefore possible for a foreign national to qualify for the provisions of §106(c) even if he or she has never been employed in the initial, sponsored position.
Finally, the May 12, 2005, memorandum states that the interim guidance will only be in effect until regulations are published as a final rule and that “the proposed rule may take a more restrictive position than this memorandum.”
Labor Certification Substitutions (old rule, no longer allowed since mid 2007)
An employer may substitute an alien beneficiary into a labor certification previously approved for another foreign worker provided that the substituted beneficiary met all of the required qualifications set forth on Form ETA-9089, of the certified labor certification on the date that the labor certification was originally filed. Where the original approved labor certification has already been submitted to USCIS in support of a prior Form I-140 petition, the employer may subsequently request a substitution and request the original petition be withdrawn.
This strategy should be considered when an employer possesses an approved labor certification (or a pending or even an approved I-140 based upon an approved labor certification) on behalf of a foreign worker beneficiary whose employment with the petitioner has terminated, or who has gained permanent residence through other means, such as marriage to a U.S. citizen or an alternative preference petition.
Accordingly, practitioners may advise clients to consider Form I-140 labor certification substitutions for applicable EB-2 and EB-3 classifications, especially during this current economic climate of downsizing and lay-offs. The key to the later utilization of a previously approved labor certification is to establish that no permanent resident status has already been obtained upon the basis of the previously approved labor certification. Use of substitution as a strategy has become more complicated with “green card” portability and concurrent filing. While traditional policies vest “ownership” of a certified labor certification with an employer unless and until the foreign national is granted permanent residence, USCIS has yet to resolve that question decisively when a foreign national “ports” his or her permanent residence case to a new employer while the adjustment of status application is pending. The issue becomes even more difficult when, under concurrent filing, both the I-140 immigrant petition and the adjustment application are pending.
PLEASE NOTE: IN 2007, THE RULES PERTAINING TO SUBSTITUTION OF BENEFICIARIES WERE CHANGED. THE PROCESS IS NO LONGER PERMITTED.
4th Preference: Religious Workers
Fourth Preference (EB-4).
This preference is for “special immigrant” visas, mainly religious workers. About 7.1 percent of the total numbers of immigrant visas are allocated to these special immigrants. The categories include certain religious workers, Panama Canal Treaty employees, Amerasian children, certain employees of U.S. foreign service posts abroad, certain retired employees of international organizations admitted to the United States under the G-4 nonimmigrant visa, and dependents of juvenile courts.
DEFINITIONS OF RELIGIOUS WORKERS
Religious workers include ministers of religion who are authorized by a recognized denomination to conduct religious worship and perform other duties usually performed by members of the clergy such as administering the sacraments, or their equivalent. The term does not apply to lay preachers. Religious vocation means a calling to religious life, evidenced by the demonstration of a lifelong commitment, such as taking of vows. Examples include nuns, monks, and religious brothers and sisters. Religious occupation means a habitual engagement in an activity which relates to a traditional religious function. Examples include liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators, or religious broadcasters. Who is not included in the definition of religious workers?
The definition of religious workers does not include janitors, maintenance workers, clerks, fund raisers, solicitors of donations, or similar occupations. The activity of a lay-person who will be engaged in a religious occupation must relate to a traditional religious function. The activity must embody the tenets of the religion and have religious significance, relating primarily, if not exclusively, to matters of the spirit as they apply to the religion.
The law provides visas for three groups of religious “special immigrants”: (1) ministers of religion; (2) professionals working in religious vocations or occupations; and (3) other workers in religious vocations or occupations. These individuals must work for U.S. nonprofit, religious organizations or at nonprofit, religious organizations affiliated with qualified religious denominations.
Is the number of visas for religious workers capped?
The ministers of religion group is not subject to a sunset date nor is there a cap on the numbers of visas available.
The two nonminister categories—religious professionals and other religious workers—are subject to the sunset provision, and limited to not more than 5,000 of the annual special immigrant admissions. This annual limit has not been reached since July 1998. Legislation has extended the provisions relating to the second and third groups to September 30, 2008. BACKGROUND REQUIREMENTS Criteria
A religious worker is a person who for the past two years has been a member of a religious denomination which has a bona fide nonprofit, religious organization in the United States; and who has been carrying on the vocation, professional work, or other work described below, continuously for the past two years; and seeks to enter the U.S. to work solely:
As a minister of that denomination; or
In a professional capacity in a religious vocation or occupation for that organization; or
In a religious vocation or occupation for the organization or its nonprofit affiliate.
Eligibility for special immigrant status requires religious workers (1) to have been a member, for two years, of a religious denomination that qualifies as a bona fide, nonprofit, religious organization in the United States; and (2) to have been carrying on religious work continuously, either abroad or in the United States, for at least two years immediately preceding the filing of the application. The religious worker must be coming to the United States solely for the purpose of (a) acting as a minister; (b) working in a professional capacity in a religious vocation or occupation for a religious organization and at the organization’s request; or (c) working in a religious vocation or occupation for a religious organization or an affiliated organization. The specific meanings of the terms of these provisions are set out below.
Many religious workers who might eventually qualify for special immigrant status arrive in the United States as R-1 nonimmigrant religious workers; others arrive in nonimmigrant visitor (B-1 or B-2) or student (F-1) status. In a 1998 case, the AAO stated that, “while further study by ordained members of the clergy may be considered as not interruptive of the carrying of their religious vocation,” undergraduate or graduate theological studies do not count for any part of the two years of continuous work experience requirement for classification as a lay worker in a religious occupation. 15 In a 2000 decision, the AAO reiterated that this exception only applies to ordained members of the clergy and not, as in one particular case, to a music director. Therefore, with this exception, months spent in B-1/B-2 or F-1 status will break the required two years of experience.
USCIS Regulations Defining Relevant Terms
A “bona fide, nonprofit, religious organization” is an organization exempt from taxation as described in IRC §501(c)(3), as it relates to religious organizations, specifically §170(b)(1)(A)(i). 1
An organization that has never sought an exemption under the tax code may still be deemed a bona fide, nonprofit, religious organization if it can satisfy USCIS that it would be eligible if it had applied for tax-exempt status. A state sales tax “exempt organization certification,” is not sufficient evidence of exemption from federal income tax.
A “bona fide organization that is affiliated with the religious denomination” is an organization closely associated with a religious denomination. The organization must meet the same tax-exempt standard mentioned above to satisfy the definition. Examples include colleges, charitable organizations, or similar “non-church” entities affiliated with a religious denomination (i.e. , Catholic Social Services, Lutheran Children and Family Services, the Mennonite Central Committee, etc.).
A “religious denomination” is defined as “a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places of religious worship, religious congregations, or comparable indication of a bona fide religious denomination” exempt from taxation under the IRC.
The term “minister” refers to an individual duly authorized by a religious denomination to conduct religious worship and perform other duties usually performed by the clergy of that religion. There must be a reasonable connection between the activities performed and the religious calling of the minister. The AAO states that a certificate of ordination alone does not prove that an alien is qualified to perform the duties of a minister or pastor, particularly where no other documents were filed in support of the beneficiary’s qualifications. On the contrary, absent a certificate of ordination, the AAO may consider the beneficiary a lay preacher and thus not entitled to the special immigrant religious worker status as a minister.
The term “minister” does not include lay preachers not authorized to perform ministerial duties. However, the term does include Buddhist lamas and monks, Christian Science practitioners, Islamic mullahs, and Hindu priests.
The term “professional capacity” means an activity in a religious vocation or occupation for which the minimum of a U.S.-obtained baccalaureate degree, or a foreign educational equivalent degree, is required. For example, in one case, a choir director and organist in a “mainline” church was required to have a bachelor’s degree in music. A music director will only be accepted as a “religious worker” if certain conditions pertain to the specific position. The AAO addressed this point and held that whether the position of music director constitutes a religious occupation will depend on examination of the following factors: (a) whether the position is a permanent salaried one; (b) whether its duties require a significant time commitment to perform; and (c) the level of training and education required to perform those duties. In that case, the petitioner did not describe the size of its choir, the number of services, the number of performances and rehearsals per week, or the religious training required for the position; therefore, the petition was denied. In addition, the AAO has stated that music must be an inherent part of the worship services. Thus, a petitioner that seeks classification of the beneficiary as a special immigrant in “professional capacity” must also establish that the prospective occupation is a religious occupation.
A monk’s or nun’s occupation need not be purely “religious” as long as it is carried out in the context of religious life; e.g. , math teacher in a Catholic school is not a “traditional religious occupation” per the AAO, but if the person is a monk or nun who happens to teach math as his or her contribution to the community, that is acceptable. In one case filed by the authors, a “business monk” in the Buddhist tradition was acceptable.
A “religious vocation” means a calling to religious life evidenced by the demonstration of commitment practiced in the religious denomination, such as the taking of vows. Examples of individuals with a religious vocation include, but are not limited to, nuns, monks, religious brothers and sisters, and in one case known to the writers, a Zen devotee. Petition
Any person, including the applicant, can file a Form I-360 petition with the U.S. Bureau of Citizenship and Immigration Services in the Department of Homeland Security (USCIS) for a person who meets the religious worker criteria. A petition for a person who is not a minister may only be filed until October 1, 2000, and any immigrant visa issued to such person shall not be valid beyond October 1, 2000. After the petition is approved by the USCIS, the applicant will be sent instructions on how to apply for a fourth preference special immigrant visa for religious workers.
Filing the Petition
To petition for special immigrant classification on behalf of a minister, professional, or religious worker, USCIS Form I-360 is submitted to the USCIS service center having jurisdiction over where the worker will perform the religious work. The petition must show that the organization qualifies as a nonprofit organization by providing:
1. Documentation showing that it is recognized by the IRS as exempt from taxation in accordance with §501(c)(3) of the IRC. 44 In appropriate cases, evidence of the organization’s assets and methods of operation and the organization’s incorporation papers under applicable state law may be requested;
2. Group Designation Letters (for example, the Catholic Church has a group letter for all organizations listed in the National Directory of Catholic Organizations); or
3. Such documentation as is required by the Internal Revenue Service to establish eligibility for exemption under §501(c)(3) of the IRC.
Letter From an Authorized Official
In addition, the petition must be accompanied by a valid job offer in a letter from an authorized official of the petitioning religious organization in the United States, that establishes:
4. The alien, for the period immediately preceding the filing of the petition, has at least two years of membership in the denomination and two years of experience in the religious vocation, professional religious work, or other religious work. The AAO’s analysis of the term “two years’ experience” is a theme that is discussed in almost all of the decisions issued in the past seven years.
Does Volunteer Work generally satisfy the two- year experience obligation?
No. The AAO generally does not consider volunteer work enough to satisfy the two-year experience obligation. The AAO considers “incidental volunteer work for the past two years . . . not sufficient to establish two years in the occupation”; “mere volunteer work in the past two years is not enough”; and “incidental voluntary participation in church activities” failed to satisfy the requirement.
When a special immigrant seeks immigrant visa processing based on the approved I-360, he or she can expect the consular officer to request the documentation that was submitted in support of the I-360. Further, in adjustment proceedings and at consular interviews, the religious institution must provide written documentation to show that it intends to compensate the beneficiary for his or her services, either through payment of salary, room and board, or a combination thereof. If the beneficiary intends to engage in employment outside the scope of the religious institution, it will call the validity of the religious job offer into question.
Unlike all other employment-based cases, where concurrent I-140 / I-485 filing is allowed, if the special immigrant seeks adjustment of status, he or she must file the I-485 with a copy of the approved I-360 petition with the service center having jurisdiction over the case. In such cases, the service center is unlikely to seek any further documentation other than an up-to-date employment letter from the prospective religious employer. This letter must outline how the employer intends to compensate the beneficiary.
INA §§245(i) and (k)
Section 245(i) of the INA, which allows persons who had violated their status (e.g. , unauthorized employment, violation of the terms of their status, etc.) to adjust under §245 on payment of a $1,000 fine was revived, but is only effective for petitions filed on or before April 30, 2001. However, §245(k) allows employment-based immigrants to adjust notwithstanding violation of status if the aggregate time in which they have been in unlawful status does not exceed 180 days. This provision applies to religious workers under INA §101(a)(27)(C).
Note: Long-Delayed Adjustment —Section §212(a)(5)(A)(iv) of the INA, which allows applicants whose §245 adjustments applications have been delayed for more than 180 days to change jobs, does not apply to special immigrant religious workers.
As with other employment-based cases, the spouse and unmarried children under 21 years of age of the special immigrant will be eligible for permanent residence status as his or her dependents.
On October 15, 2003, the Act’s sunset provision was extended by legislation to September 30, 2008. This means that beneficiaries of approved Form I-360 religious worker petitions may file for adjustment of status or an immigrant visa as long as the priority date is current, and the visas issued or the adjustments granted before midnight, September 30, 2008. The sunset provision does not apply to “ministers of religion,” who will continue to be eligible after September 30, 2008. It should be noted that the sunset provision had been extended previously. A move to extend further, or to make a position permanent under this section, can be anticipated in Congress prior to the sunset date. Additional Documentation
The I-360 petition must be accompanied by:
A letter from the authorized official of the religious organization establishing that the proposed services and applicant qualify as listed above;
A letter from the authorized official of the religious organization attesting to the applicant's membership in the religious denomination and explaining, in detail, the person's religious work and all employment during the past two years, and for the proposed employment; and
Evidence establishing that the religious organization, and any affiliate which will employ the person, is a bona fide nonprofit religious organization in the U.S. and is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code of 1986.
On December 17, 2003, U.S. Citizenship and Naturalization Services (USCIS) issued a guidance memorandum stating that I-360s should not be denied merely because petitioner is not a “church” under §170(b)(1)(A)(i) of the Internal Revenue Code of 1986 (IRC), and that an organization may qualify if it can establish that its tax classification was based on religious factors and that it operates under principles of a particular faith. Examples of such tax-exempt organizations include colleges, charitable organizations, and similar “non-church” entities affiliated with a religious denomination.
The immigration laws of the United States, in order to protect the health, welfare, and security of the United States, prohibit the issuance of a visa to certain applicants. Examples of applicants who must be refused visas are those who: have a communicable disease such as tuberculosis, or have a dangerous physical and mental disorder, or are drug addicts; have committed serious criminal acts; are terrorists, subversives, members of a totalitarian party, or former Nazi war criminals; have used illegal means to enter the United States; or are ineligible for citizenship. Some former exchange visitors must live abroad for 2 years. If found to be ineligible, the consular officer will then advise the applicant if the law provides for some form of waiver. OTHER IMPORTANT DOCUMENTATION Documents for Visa Application
All applicants must submit certain personal documents such as passports, birth certificates, police certificates, and other civil documents, as well as evidence that they will not become public charges in the United States. The U.S. consular office will inform visa applicants of the documents needed as their applications are processed. Medical Examinations
Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination. The examination will be conducted by a doctor designated by the consular officer. Examination costs must be borne by the applicant, in addition to the visa fees. Visa Fees
Each immigrant visa application processing fee. Fees must be paid for each intending immigrant regardless of age, and are not refundable. Local currency equivalents are acceptable. Fees should not be sent to the consular office unless requested specifically. The USCIS charges additional fees for filing petitions. Numerical Limitations
Whenever there are more qualified applicants for a category than there are available numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant’s priority date. Immigrant visas cannot be issued until an applicant’s priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. Check the Visa Bulletin for the latest priority dates. Immigrant Visa Number Must Be Available
As with any other preference classification subject to a numerical ceiling, an immigrant visa number must be available in order for adjustment of status to be granted or an immigrant visa to be issued by a U.S. consul abroad. The overall immigrant visa category applicable to all special immigrants is the fourth employment-based preference (EB-4). Not more than 5,000 visas are available to nonminister religious workers in a given fiscal year. The fourth employment-based preference for Religious Workers was “current” as of March 2005. However, at times, there are not sufficient visa numbers available worldwide. Family Members
An immigrant religious worker’s spouse and unmarried children under 21 years of age may be granted derivative immigration status. Miscellaneous
Since no advance assurances can be given that a visa will be issued, applicants are advised not to make final travel arrangements, not to dispose of their property, and not to give up their jobs until visas have been issued to them. An immigrant visa can be valid for six months from date of issuance.
On December 17, 2003, U.S. Citizenship and Naturalization Services (USCIS) issued a guidance memorandum stating that I-360s should not be denied merely because petitioner is not a “church” under §170(b)(1)(A)(i) of the Internal Revenue Code of 1986 (IRC), and that an organization may qualify if it can establish that its tax classification was based on religious factors and that it operates under principles of a particular faith. Examples of such tax-exempt organizations include colleges, charitable organizations, and similar “non-church” entities affiliated with a religious denomination (i.e. , Catholic Social Services, Lutheran Children and Family Services, the Mennonite Central Committee, etc.).
The religious organization must establish that it is eligible for the tax-exempt status according to IRC §501(c)(3), specifically §170(b)(1)(A)(i), as it relates to religious organizations.
FIFTH PREFERENCE: INVESTORS
The pertinent regulations for EB5 million dollar investor visas are set forth below:
§ 204.6 Petitions for employment creation aliens.
204.6(a) General. A petition to classify an alien under section 203(b)(5) of the Act must be filed on Form I-526, Immigrant Petition by Alien Entrepreneur. The petition must be accompanied by the appropriate fee. Before a petition is considered properly filed, the petition must be signed by the petitioner, and the initial supporting documentation required by this section must be attached. Legible photocopies of supporting documents will ordinarily be acceptable for initial filing and approval. However, at the discretion of the director, original documents may be required.
204.6(b) Jurisdiction. The petition must be filed with the Service Center having jurisdiction over the area in which the new commercial enterprise is or will be principally doing business.
204.6(c) Eligibility to file. A petition for classification as an alien entrepreneur may only be filed by any alien on his or her own behalf.
204.6(d) Priority date. The priority date of a petition for classification as an alien entrepreneur is the date the petition is properly filed with the Service or, if filed prior to the effective date of these regulations, the date the Form I-526 was received at the appropriate Service Center.
204.6(e) Definitions. As used in this section:
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly-owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. This definition shall not include a noncommercial activity such as owning and operating a personal residence.
Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. In the case of the Immigrant Investor Pilot Program, "employee" also means an individual who provides services or labor in a job which has been created indirectly through investment in the new commercial enterprise. This definition shall not include independent contractors.
Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, "full-time employment" also means employment of a qualifying employee in a position that has been created indirectly through revenues generated from increased exports resulting from the Pilot Program that requires a minimum of 35 working hours per week. A job-sharing arrangement whereby two or more qualifying employees share a full-time position shall count as full-time employment provided the hourly requirement per week is met. This definition shall not include combinations of part-time positions even if, when combined, such positions meet the hourly requirement per week.
High employment area means a part of a metropolitan statistical area that at the time of investment:
(i) Is not a targeted employment area; and
(ii) Is an area with an unemployment rate significantly below the national average unemployment rate.
Invest means to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur and the new commercial enterprise does not constitute a contribution of capital for the purposes of this part.
New means established after November 29, 1990.
Qualifying employee means a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation. This definition does not include the alien entrepreneur, the alien entrepreneur's spouse, sons, or daughters, or any nonimmigrant alien.
Regional center means any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment.
Rural area means any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more.
Targeted employment area means an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate.
Troubled business means a business that has been in existence for at least two years, has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the twelve or twenty-four month period prior to the priority date on the alien entrepreneur's Form I-526, and the loss for such period is at least equal to twenty per cent of the troubled business's net worth prior to such loss. For purposes of determining whether or not the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
204.6(f) Required amounts of capital--
204.6(f)(1) General. Unless otherwise specified, the amount of capital necessary to make a qualifying investment in the United States is one million United States dollars ($1,000,000).
204.6(f)(2) Targeted employment area. The amount of capital necessary to make a qualifying investment in a targeted employment area within the United States is five hundred thousand United States dollars ($500,000).
204.6(f)(3) High employment area. The amount of capital necessary to make a qualifying investment in a high employment area within the United States, as defined in section 203(b)(5)(C)(iii) of the Act, is one million United States dollars ($1,000,000).
204.6(g) Multiple investors--
204.6(g)(1) General. The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur by more than one investor, provided each petitioning investor has invested or is actively in the process of investing the required amount for the area in which the new commercial enterprise is principally doing business, and provided each individual investment results in the creation of at least ten full-time positions for qualifying employees. The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur even though there are several owners of the enterprise, including persons who are not seeking classification under section 203(b)(5) of the Act and non-natural persons, both foreign and domestic, provided that the source(s) of all capital invested is identified and all invested capital has been derived by lawful means.
204.6(g)(2) Employment creation allocation. The total number of full-time positions created for qualifying employees shall be allocated solely to those alien entrepreneurs who have used the establishment of the new commercial enterprise as the basis of a petition on Form I-526. No allocation need be made among persons not seeking classification under section 203(b)(5) of the Act or among non-natural persons, either foreign or domestic. The Service shall recognize any reasonable agreement made among the alien entrepreneurs in regard to the identification and allocation of such qualifying positions.
204.6(h) Establishment of a new commercial enterprise. The establishment of a new commercial enterprise may consist of:
204.6(h)(1) The creation of an original business;
204.6(h)(2) The purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results; or
204.6(h)(3) The expansion of an existing business through the investment of the required amount, so that a substantial change in the net worth or number of employees results from the investment of capital. Substantial change means a 40 percent increase either in the net worth, or in the number of employees, so that the new net worth, or number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees. Establishment of a new commercial enterprise in this manner does not exempt the petitioner from the requirements of 8 CFR 204.6(j)(2) and (3) relating to the required amount of capital investment and the creation of full-time employment for ten qualifying employees. In the case of a capital investment in a troubled business, employment creation may meet the criteria set forth in 8 CFR 204.6(j)(4)(ii).
204.6(i) State designation of a high unemployment area. The state government of any state of the United States may designate a particular geographic or political subdivision located within a metropolitan statistical area or within a city or town having a population of 20,000 or more within such state as an area of high unemployment (at least 150 percent of the national average rate). Evidence of such designation, including a description of the boundaries of the geographic or political subdivision and the method or methods by which the unemployment statistics were obtained, may be provided to a prospective alien entrepreneur for submission with Form I-526. Before any such designation is made, an official of the state must notify the Associate Commissioner for Examinations of the agency, board, or other appropriate governmental body of the state which shall be delegated the authority to certify that the geographic or political subdivision is a high unemployment area.
204.6(j) Initial evidence to accompany petition. A petition submitted for classification as an alien entrepreneur must be accompanied by evidence that the alien has invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees. In the case of petitions submitted under the Immigrant Investor Pilot Program, a petition must be accompanied by evidence that the alien has invested, or is actively in the process of investing, capital obtained through lawful means within a regional center designated by the Service in accordance with paragraph (m)(4) of this section. The petitioner may be required to submit information or documentation that the Service deems appropriate in addition to that listed below.
204.6(j)(1) To show that a new commercial enterprise has been established by the petitioner in the United States, the petition must be accompanied by:
204.6(j)(1)(i) As applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or other similar organizational document for the new commercial enterprise;
204.6(j)(1)(ii) A certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require any such certificate or the state or municipality does not issue such a certificate, a statement to that effect; or
204.6(j)(1)(iii) Evidence that, as of a date certain after November 29, 1990, the required amount of capital for the area in which an enterprise is located has been transferred to an existing business, and that the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred. This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth, number of employees.
204.6(j)(2) To show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk. Evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. Such evidence may include, but need not be limited to:
204.6(j)(2)(i) Bank statement(s) showing amount(s) deposited in United States business account(s) for the enterprise;
204.6(j)(2)(ii) Evidence of assets which have been purchased for use in the United States enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity;
204.6(j)(2)(iii) Evidence of property transferred from abroad for use in the United States enterprise, including United States Customs Service commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property;
204.6(j)(2)(iv) Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder's request; or
204.6(j)(2)(v) Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by assets of the petitioner, other than those of the new commercial enterprise, and for which the petitioner is personally and primarily liable.
204.6(j)(3) To show that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means, the petition must be accompanied, as applicable, by:
204.6(j)(3)(i) Foreign business registration records;
204.6(j)(3)(ii) Corporate, partnership (or any other entity in any form which has filed in any country or subdivision thereof any return described in this subpart), and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner;
204.6(j)(3)(iii) Evidence identifying any other source(s) of capital; or
204.6(j)(3)(iv) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past fifteen years.
204.6(j)(4) Job creation--
204.6(j)(4)(i) General. To show that a new commercial enterprise will create not fewer than ten (10) full-time positions for qualifying employees, the petition must be accompanied by:
204.6(j)(4)(i)(A) Documentation consisting of photocopies of relevant tax records, Forms I-9, or other similar documents for ten (10) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or
204.6(j)(4)(i)(B) A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired.
204.6(j)(4)(ii) Troubled business. To show that a new commercial enterprise which has been established through a capital investment in a troubled business meets the statutory employment creation requirement, the petition must be accompanied by evidence that the number of existing employees is being or will be maintained at no less than the pre-investment level for a period of at least two years. Photocopies of tax records, Forms I-9, or other relevant documents for the qualifying employees and a comprehensive business plan shall be submitted in support of the petition.
204.6(j)(4)(iii) Immigrant Investor Pilot Program. To show that the new commercial enterprise located within a regional center approved for participation in the Immigrant Investor Pilot Program meets the statutory employment creation requirement, the petition must be accompanied by evidence that the investment will create full-time positions for not fewer than 10 persons either directly or indirectly through revenues generated from increased exports resulting from the Pilot Program. Such evidence may be demonstrated by reasonable methodologies including those set forth in paragraph (m)(3) of this section.
204.6(j)(5) To show that the petitioner is or will be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial control or through policy formulation, as opposed to maintaining a purely passive role in regard to the investment, the petition must be accompanied by:
204.6(j)(5)(i) A statement of the position title that the petitioner has or will have in the new enterprise and a complete description of the position's duties;
204.6(j)(5)(ii) Evidence that the petitioner is a corporate officer or a member of the corporate board of directors; or
204.6(j)(5)(iii) If the new enterprise is a partnership, either limited or general, evidence that the petitioner is engaged in either direct management or policy making activities. For purposes of this section, if the petitioner is a limited partner and the limited partnership agreement provides the petitioner with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the petitioner will be considered sufficiently engaged in the management of the new commercial enterprise.
204.6(j)(6) If applicable, to show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by:
204.6(j)(6)(i) In the case of a rural area, evidence that the new commercial enterprise is principally doing business within a civil jurisdiction not located within any standard metropolitan statistical area as designated by the Office of Management and Budget, or within any city or town having a population of 20,000 or more as based on the most recent decennial census of the United States; or
204.6(j)(6)(ii) In the case of a high unemployment area:
204.6(j)(6)(ii)(A) Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150 percent of the national average rate; or
204.6(j)(6)(ii)(B) A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR 204.6(i).
204.6(k) Decision. The petitioner will be notified of the decision, and, if the petition is denied, of the reasons for the denial and of the petitioner's right of appeal to the Associate Commissioner for Examinations in accordance with the provisions of part 103 of this chapter. The decision must specify whether or not the new commercial enterprise is principally doing business within a targeted employment area.
204.6(l) Disposition of approved petition. The approved petition will be forwarded to the United States consulate selected by the petitioner and indicated on the petition. If a consulate has not been designated, the petition will be forwarded to the consulate having jurisdiction over the place of the petitioner's last residence abroad. If the petitioner is eligible for adjustment of status to conditional permanent residence, and if the petition indicates that the petitioner intends to apply for such adjustment, the approved petition will be retained by the Service for consideration in conjunction with the application for adjustment of status.
204.6(m) Immigrant Investor Pilot Program.
204.6(m)(1) Scope. The Immigrant Investor Pilot Program is established solely pursuant to the provisions of section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, and subject to all conditions and restrictions stipulated in that section. Except as provided herein, aliens seeking to obtain immigration benefits under this paragraph continue to be subject to all conditions and restrictions set forth in section 203(b)(5) of the Act and this section.
204.6(m)(2) Number of immigrant visas allocated. The annual allocation of the visas available under the Immigrant Investor Pilot Program is set at 300 for each of the five fiscal years commencing on October 1, 1993.
204.6(m)(3) Requirements for regional centers.
Each regional center wishing to participate in the Immigrant Investor Pilot Program shall submit a proposal to the Assistant Commissioner for Adjudications, which:
204.6(m)(3)(i) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment; 204.6(m)(3)(ii) Provides in verifiable detail how jobs will be created indirectly through increased exports;
204.6(m)(3)(iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center;
204.6(m)(3)(iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and
204.6(m)(3)(v) Is supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables.
204.6(m)(4) Submission of proposals to participate in the Immigrant Investor Pilot Program. On August 24, 1993, the Service will accept proposals from regional centers seeking approval to participate in the Immigrant Investor Pilot Program. Regional centers that have been approved by the Assistant Commissioner for Adjudications will be eligible to participate in the Immigrant Investor Pilot Program.
204.6(m)(5) Decision to participate in the Immigrant Investor Pilot Program. The Assistant Commissioner for Adjudications shall notify the regional center of his or her decision on the request for approval to participate in the Immigrant Investor Pilot Program, and, if the petition is denied, of the reasons for the denial and of the regional center's right of appeal to the Associate Commissioner for Examinations. Notification of denial and appeal rights, and the procedure for appeal shall be the same as those contained in 8 CFR 103.3.
204.6(m)(6) Termination of participation of regional centers. To ensure that regional centers continue to meet the requirements of section 610(a) of the Appropriations Act, the Assistant Commissioner for Adjudications shall issue a notice of intent to terminate the participation of a regional center in the pilot program upon a determination that the regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. The notice of intent to terminate shall be made upon notice to the regional center and shall set forth the reasons for termination. The regional center must be provided thirty days from receipt of the notice of intent to terminate to offer evidence in opposition to the ground or grounds alleged in the notice of intent to terminate. If the Assistant Commissioner for Adjudications determines that the regional center's participation in the Pilot Program should be terminated, the Assistant Commissioner for Adjudications shall notify the regional center of the decision and of the reasons for termination. The regional center may appeal the decision within thirty days after the service of notice to the Associate Commissioner for Examinations as provided in 8 CFR 103.3.
204.6(m)(7) Requirements for alien entrepreneurs. An alien seeking an immigrant visa as an alien entrepreneur under the Immigrant Investor Pilot Program must demonstrate that his or her qualifying investment is within a regional center approved pursuant to paragraph (m)(4) of this section and that such investment will create jobs indirectly through revenues generated from increased exports resulting from the new commercial enterprise.
204.6(m)(7)(i) Exports. For purposes of this paragraph (m) of this section, the term "exports" means services or goods which are produced directly or indirectly through revenues generated from a new commercial enterprise and which are transported out of the United States;
204.6(m)(7)(ii) Indirect job creation. To show that 10 or more jobs are actually created indirectly by the business, reasonable methodologies may be used. Such methodologies may include multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting devices which indicate the likelihood that the business will result in increased employment.
204.6(m)(8) Time for submission of petitions for classification as an alien entrepreneur under the Immigrant Investor Pilot Program. Commencing on October 1, 1993, petitions will be accepted for filing and adjudicated in accordance with the provisions of this section if the alien entrepreneur has invested or is actively in the process of investing within a regional center which has been approved by the Service for participation in the Pilot Program.
204.6(m)(9) Effect of termination of approval of regional center to participate in the Immigrant Investor Pilot Program. Upon termination of approval of a regional center to participate in the Immigrant Investor Pilot Program, the director shall send a formal written notice to any alien within the regional center who has been granted lawful permanent residence on a conditional basis under the Pilot Program, and who has not yet removed the conditional basis of such lawful permanent residence, of the termination of the alien's permanent resident status, unless the alien can establish continued eligibility for alien entrepreneur classification under section 203(b)(5) of the Act.