[Federal Register Volume 60, Number 108 (Tuesday, June 6, 1995)]
[Proposed Rules]
[Pages 29771-29781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13806]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 204
[INS No. 1633-93]
RIN 1115-AD55
Employment-Based Immigrants
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service regulations on employment-based immigrant petitions. The
promulgation of this proposed rule is necessary to clarify and revise a
number of issues concerning employment-based immigrant petitions which
have arisen since the enactment of the Immigration Act of 1990. This
proposed rule will provide more guidance to the public in filing
employment-based immigrant petitions.
DATES: Written comments must be submitted on or before August 7, 1995.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1633-93 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
Michael W. Straus, Senior Immigration Examiner, Adjudications Division,
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 514-3228.
SUPPLEMENTARY INFORMATION: Section 121 of the Immigration Act of 1990
(IMMACT), Public Law 101-649, dated November 29, 1990, amended section
203 of the Immigration and Nationality Act (Act) by creating new
classifications and procedures for employment-based immigration. On
November 29, 1991, the Immigration and Naturalization Service (Service)
promulgated regulations implementing section 121 of IMMACT (see 56 FR
60897-60913). Since the promulgation of its regulation, the Service has
encountered a number of issues concerning employment-based petitions
which require clarification and revision. On December 12, 1991, the
President signed the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991 (MTINA), Public Law 102-232, which
modified IMMACT. In light of the changes made by MTINA and the issues
which need clarification and revision, the Service proposes to amend 8
CFR 204.5.
Section 203(b) of the Act, as amended by section 121 of IMMACT,
created five new employment-based immigrant categories as follows:
1. Priority workers.
A. Aliens with extraordinary ability;
B. Outstanding professors and researchers;
C. Certain multinational executives and managers.
2. Members of the professions holding advanced degrees and aliens
of exceptional ability.
3. Skilled workers, professionals, and other workers.
4. Certain special immigrants.
5. Employment creation immigrants.
Since the promulgation of the Service's regulations on employment-
based immigrants on November 29, 1991, the Service has encountered a
number of issues in adjudicating employment-based petitions which
require revision or clarification. This regulation proposes to amend
the current regulation on employment-based petitions in order to
clarify portions of the regulations which have been problematic for the
Service and the public. The proposed rule addresses petitions for
employment-based immigrants, as well as priority dates for employment-
based petitions, evidence required to show ability to pay the wage
offered, and validity of labor certifications and employment-based
petitions following changes in employer and job location. The Service
will issue a separate proposed regulation on petitions for employment
creation aliens at a later date.
Filing of the Petition
Most of the employment-based immigrant categories require that an
employer desire and intend to employ an alien within the United States.
See section 204(a)(1)(D) of the Act. The present regulation on
employment-based petitions does not define the term ``employer'' as
used in the statute. The Service has determined that this term should
be clarified to provide some guidance to the public and to adjudicators
on whether a petitioner qualifies as an employer. The proposed rule
provides that the alien beneficiary must have an employer-employee
relationship with the petitioner as indicated by the employer's ability
to hire, pay, fire, supervise, or otherwise control the work of the
employee. This definition of ``United States employer'' is consistent
with the definition of this term in the H-1B regulations. See 8 CFR
214.2(h)(4)(ii). It is also consistent with the general definition of
employment found in case law. See e.g. Matter of Pozzoli, 14 I&N Dec.
569 (Reg. Comm. 1974).
In the case of employers who are persons, the proposed regulation
limits qualifying employers to individuals who are United States
citizens or lawful permanent residents. Aliens, other than lawful
permanent residents, may not offer permanent employment to U.S. or
other workers who seek to apply for the job offered. Allowing for
aliens other than lawful permanent residents to file an immigrant
petition is inconsistent with the overall statutory scheme.
Specifically, all nonimmigrants who enter the United States, including
those for whom there is no maximum duration of stay, are admitted for a
limited period of time and for a particular purpose. Upon completion of
their purpose for staying in the United States, they must depart,
extend, or change their nonimmigrant status. The limited nature of
their stay in the United States precludes them from being able to
extend a permanent offer of employment and, therefore, from submitting
an employment-based petition to accord immigrant status. Consequently,
petitioning employers who are in nonimmigrant status are not competent
to offer permanent employment, because their status is neither settled,
stabilized, nor permanent. See Matter of Thornhill, 18 I&N Dec. 34, 35-
36 (Comm. 1981). The Service notes that this proposed regulation is in
accord with Department of Labor policy, which precludes nonimmigrants
from filing labor certifications due to their temporary status. See
Department of Labor, Technical Assistance Guide No. 656, Labor
Certifications, at page 136. Accordingly, the Service proposes to limit
the persons who are able to submit employment-based petitions to U.S.
citizens and lawful permanent residents.
Priority Date
Following the enactment of IMMACT, the Service issued a proposed
rule which provided that the priority date for an employment-based
petition would be the date of filing an employment-based petition with
the Service. See 56 FR 30703-30714, July 5, 1991. After receipt of
comments to the proposed rule, the Service decided to continue the
established rule on assignment of priority dates, which set the
priority date as the date the office within the employment service
system of the Department of Labor received the application for labor
certification. See 56 FR 60897-60913. The Service also decided to add a
new provision which allowed an alien to retain the priority date of any
employment-based petition which the Service approved on his or her
behalf, unless it is revoked. See 56 FR 60905; 8 CFR 204.5(e).
Before IMMACT became effective, the Department of Labor permitted
an employer to substitute qualified labor certification beneficiaries
after issuance of the labor certification. The petitioner
[[Page 29773]] could return the labor certification to the certifying
officer and request that another beneficiary be substituted. See
Employment and Training Administration, Technical Assistance Guide No.
656, p. 105. In implementing IMMACT, the Department of Labor eliminated
substitution of labor certification beneficiaries. See 56 FR 54920-
54930; 20 CFR 656.30(c)(2). The Department of Labor determined that
substitution of labor certification beneficiaries was unfair to U.S.
workers and other aliens seeking to immigrate, was subject to fraud and
abuse, and constituted a significant administrative burden. See 56 FR
54926. In 1994, the United States Court of Appeals for the District of
Columbia Circuit enjoined enforcement of the Department of Labor's
regulation precluding substitution of labor certification
beneficiaries, based on the Administrative Procedure Act. See Kooritzky
v. Reich, 17 F.3d 1509 (D.C. Cir. 1994). As a result of this decision,
employers may request substitution of labor certification
beneficiaries. In light of the court's decision, the Service has
reconsidered its regulations on assigning priority dates.
The Service has concluded that it is unfair to other aliens who
seek to immigrate to the United States on employment-based petitions if
the substituted alien gains the priority date of the original alien
beneficiary, since those aliens would receive a later priority date
than a substituted alien. Currently, in certain employment-based
immigrant categories, such as the third preference ``other worker''
category, an alien who benefits from a labor certification substitution
can immigrate ahead of another alien who has been waiting for an
immigrant visa for several years. Not only would allowing substituted
aliens to receive the earlier priority date be unfair to other
intending immigrants, it would also be contrary to the Service's policy
of assigning a priority date to the alien rather than to the employer
(see 8 CFR 204.5(e)).
Providing a priority date based on an employer's substitution of a
labor certification beneficiary also carries the potential for fraud
and abuse. Continuing this practice may encourage the creation of a
market for labor certifications, particularly in categories in which
there is a lengthy wait to receive an immigrant visa. For instance, it
is conceivable that the original alien beneficiary might be induced to
engage in the fraudulent practice of selling his or her status as a
labor certification beneficiary to a substituted alien.
The Service, therefore, proposes to set the priority date for an
alien who has been substituted for another alien on a labor
certification as the date the employer requested the substitution. This
proposed rule will be fair to other aliens who apply under employment-
based immigrant categories, and would be consistent with the Service's
policy of according a priority date to the alien rather than to the
employer, thereby eliminating an inducement to commit fraud.
Retention of Employment-Based Priority Dates
The Service's current regulation provides that an alien retains the
priority date of any petition filed under the first, second, or third
employment-based categories which the Service approved on his or her
behalf. See 8 CFR 204.5(e). A petition revoked under sections 204(e) or
205 of the Act, however, will not confer a priority date. Section 205
of the Act permits the Attorney General to revoke an approved petition
for good and sufficient cause. The regulations governing revocation
distinguish between automatic revocation and revocation on notice. See
8 CFR part 205. For employment-based petitions, automatic revocation
occurs upon invalidation of a labor certification, death of the
petitioner, written withdrawal by the petitioner, or by dissolution of
the petitioner's business. See 8 CFR 205.1(c). The Service has
determined that the current regulation is difficult to administer,
because the Service is not usually notified of actions which may result
in automatic revocation. In addition, the regulation treats those
aliens who fall under the automatic revocation provisions differently
from those aliens whom the petitioner no longer seeks to employ for
various reasons. For example, under the current regulation, if the
petitioning employer dissolves or goes out of business, the petition is
automatically revoked and the beneficiary loses his or her priority
date. See 8 CFR 205.1(c)(4). However, if the petitioning employer
remains in business but later decides not to offer the position to the
beneficiary, the beneficiary can use the priority date for any
subsequent petition filed on his or her behalf. Accordingly, the
Service proposes to amend 8 CFR 204.5(e) to state that only a petition
revoked on notice pursuant to 8 CFR 205.2 for fraud or
misrepresentation will not confer a priority date for any subsequently
filed employment-based petition. This change will allow for consistency
and fairness in assignment of priority dates and easier administration
for the Service.
Maintaining Priority Dates for Employment-Based Petitions Filed Before
October 1, 1991
The current regulation states that any petition filed before
October 1, 1991, and approved under section 203(a)(3) or 203(a)(6) of
the Act, as in effect before October 1, 1991, shall be deemed a
petition approved to accord status under section 203(b)(2) or within
the appropriate classification under section 203(b)(3) respectively, of
the Act, provided the alien applies for an immigrant visa or adjustment
of status within the 2 years following notification that an immigrant
visa is immediately available. See 8 CFR 204.5(f). As of October 1,
1991, the priority dates for all employment-based immigrant categories
were current. Subsequently, however, visa numbers for the other
(unskilled) worker subcategory of section 203(b)(3) of the Act quickly
became over-subscribed and retrogressed, as did visa numbers for some
employment-based categories for natives of India, China, and the
Philippines. Because many aliens who were current on October 1, 1991,
were unable to complete the immigration process due to the rapid
retrogression of visa numbers, this regulation needs to be amended out
of fairness to these aliens. To further Congress' intent in enacting
section 161(c)(4) of IMMACT, the Service proposes to amend the
regulation to state that a petition filed under section 203(a)(3) or
203(a)(6) of the Act before October 1, 1991, and approved on any date,
shall be deemed a petition approved under section 203(b)(2) or
203(b)(3) of the Act, provided the alien applies for an immigrant visa
or adjustment of status within a 2-year time period during which the
immigrant visa is continuously available.
Section 161(c)(4)(B) of IMMACT provides that the automatic
conversion of petitions filed under section 203(a)(3) or 203(a)(6) of
the Act before October 1, 1991, shall not occur if the priority date
for issuance of a visa has been available for a 2-year period. In the
current regulation, the 2-year period commences following notification
that an immigrant visa is immediately available. See 8 CFR 204.5(f).
Since the promulgation of this regulation in 1991, the Service has had
difficulty defining the term ``notification that an immigrant visa is
immediately available.'' In the case of beneficiaries of approved
petitions who apply for adjustment of status under section 245 of the
Act, the Service only notifies the alien of the priority date for the
approved petition. For alien beneficiaries who apply for immigrant
visas, notification depends [[Page 29774]] on when the alien received
immigrant visa forms from a U.S. consulate, the Transitional Immigrant
Visa Processing Facility, or the National Visa Center. This method of
determining when notification occurs leads to inconsistencies between
those aliens who apply for adjustment of status and those who apply for
an immigrant visa. For purposes of uniformity, the 2-year period will
commence upon approval of the petition or when the priority date
becomes available, whichever is later. A visa number must be
continuously available during the 2-year period. Should the priority
date retrogress within the 2-year period after which a visa number
becomes available, the 2-year period provided for under section
161(c)(4)(B) of IMMACT will commence anew at the time the priority date
once again becomes current. This change allows for consistency and
adheres to the language of IMMACT.
Additional Evidence
The current regulation requires the petitioner to establish ability
to pay the wage offered in the form of an annual report, a Federal tax
return, or an audited financial statement. See 8 CFR 204.5(g)(2). In
appropriate cases, the petitioner may submit or the Service may request
additional evidence such as a profit/loss statement, bank account
record, or personnel record. During the past 2 years, the Service has
found that other documents such as payroll records and W-2 forms are
useful types of evidence in establishing ability to pay the wage
offered. Therefore, the Service proposes to add these two types of
evidence to the list of examples of additional evidence. The proposed
addition of these two types of documents does not suggest that the
Service intends to allow these documents as primary evidence of ability
to pay.
Validity of Section 203(b) Petitions and Labor Certifications
Following the issuance of a labor certification by the Department
of Labor or the approval of an employment-based petition by the
Service, the job location or the structure and ownership of the
petitioning employer may change. Following the implementation of
IMMACT, the Service and the Department of Labor entered into an
agreement that the Service will determine the validity of labor
certifications once the Department of Labor issues a labor
certification. The proposed rule at 8 CFR 204.5(h) essentially restates
the Department of Labor's regulation on validity and invalidation of
labor certifications. See 20 CFR 656.30. In addition, it states that
when an alien immigrates under an employment-based immigrant category,
based on a labor certification, the labor certification will no longer
be valid. The Service believes that an alien should not be able to
immigrate and then re-immigrate using the same labor certification.
This provision is consistent with Department of Labor policy, which
states that a non-Schedule A labor certification is limited to a
specific job opportunity. See Employment and Training Administration,
Technical Assistance Guide No. 656 at 104. See Matter of Harry Bailen
Builders, 19 I&N Dec. 412 (Comm. 1986) (holding that, based on the
advice of the Department of Labor, the specific job opportunity ceases
to exist when an alien immigrates based on the labor certification). It
is not relevant whether the alien commenced the offered employment upon
obtaining permanent resident status based on the labor certification.
To allow an alien to use a labor certification twice would enable the
alien to circumvent the immigration process if he or she abandons or
otherwise loses his or her permanent residence and seeks to reimmigrate
to the United States. Specifically, if the alien is able to use the
labor certification twice, the alien can circumvent the labor
certification requirement. Such a situation is not fair to other aliens
who seek to immigrate to the United States. Moreover, it encourages
fraud by discouraging the alien beneficiary from actually filling the
job offered. Accordingly, the Service proposes to amend this regulation
to provide that a labor certification is no longer valid when the alien
immigrates to the United States under an employment-based category,
based on that labor certification.
In furtherance of the agreement with the Department of Labor, the
Service proposes to add a new paragraph on validity of labor
certifications, based on changes of employer and job location.
I. Changes in Job Location
For non-Schedule A labor certifications, if the location of the job
offered to the alien changes after the labor certification is approved,
the Service will determine if the labor certification remains valid.
The Service will follow existing Department of Labor regulations which
provide that a labor certification is valid within the normal commuting
distance of the site of the original offer of employment. See 20 CFR
656.30(c)(2); 20 CFR 656.3 (definition of area of intended employment).
Any location within a Metropolitan Statistical Area (MSA) is deemed to
be within normal commuting distance. See 20 CFR 656.3. A Schedule A
labor certification is valid throughout the United States. See 20 CFR
656.30(c)(1).
In the case of non-Schedule A labor certifications where there is a
job location change after the approval of an Immigrant Petition for
Alien Worker (Form I-140) or labor certification, the petitioning
employer must file an I-140 petition with the service center having
jurisdiction over the new location where the alien beneficiary will be
employed. For Schedule A labor certifications, if there is a change in
job location, the alien must submit a signed job offer Form ETA 750 at
his or her interview for adjustment of status or immigrant visa.
II. Successorship in Interest
In cases where a petitioning entity changes ownership, the issue
may arise whether the employment relationship has so changed as to
render the petition invalid. Based on the above-noted agreement with
the Department of Labor, the Service will determine whether there has
been a ``successorship in interest'' and, therefore, whether an
approved visa petition and/or labor certification remain valid.
Generally, if a new employer is a ``successor in interest'' to the
original petitioning employer, the Service will reaffirm the validity
of the visa petition and/or labor certification. Successorship in
interest can occur when the petitioning employer, or a division
thereof, is merged, acquired or purchased by another business. A
business restructuring or reorganization should not affect the validity
of a petition, unless the job and/or wages offered to the beneficiary
have changed. To establish successorship in interest, the successor
entity must demonstrate substantial continuity with the original
petitioner. The Service proposes that, to establish successorship in
interest, the new employer must establish that it has substantially
assumed the rights, duties, obligations and assets of the original
employer and continues to operate the same type of business as the
original employer. The new employer must also submit evidence of
ability to pay the proffered wage. In addition, the successor in
interest must also demonstrate that the original employer had the
ability to pay the proffered wage when the labor certification was
filed, if the Service did not approve an employment-based petition on
behalf of original employer. See Matter of Dial Auto Repair Shop, Inc.,
19 I&N Dec. 481 (Comm. 1986). The Service invites comments on whether
the ``substantial [[Page 29775]] assumption'' standard provides
sufficient guidance to the public, reflects current business practice,
and preserves the integrity of the immigration process. In addition,
the Service welcomes comments on alternative ways to define
successorship in interest.
To establish successorship in interest, the new employer must
submit a Form I-140 with the service center having jurisdiction over
the intended place of employment along with documentation of
successorship of interest and ability to pay. If the service center
determines that the petitioner fails to qualify as a successor in
interest, it will deny the I-140 petition. The petitioner may pursue an
appeal with the Administrative Appeals Unit. If the service center
finds that the petitioner is a successor in interest, it will approve
the petition and accord the beneficiary the priority date of the
previously approved petition.
Aliens of Extraordinary Ability
The current regulation at 8 CFR 204.5(h)(2) defines extraordinary
ability as a level of expertise indicating that the individual is one
of that small percentage who have risen to the very top of a field of
endeavor. The regulation lists evidence which needs to be presented to
establish extraordinary ability. See 8 CFR 204.5(h)(3). Since the
implementation of IMMACT, there has arisen some confusion over the role
of various types of evidence listed in 8 CFR 204.5(h)(3). The evidence
listed is intended to be a guideline for the petitioner and the Service
to determine extraordinary ability in order to make the adjudicative
process easier for both the petitioner and the Service. The fact that
an alien may meet three of the listed criteria does not necessarily
mean that he or she meets the standard of extraordinary ability. The
Service adjudicator must still determine whether the alien is one of
that small percentage who have risen to the very top of his or her
field of endeavor. Accordingly, the Service proposes to amend the
regulations to state that meeting three of the evidentiary standards is
not dispositive of whether the beneficiary is an alien of extraordinary
ability.
By statute, aliens who immigrate under this category do not require
a labor certification to work in their area of extraordinary ability,
since by definition, they will not be competing with the U.S. labor
market. The situation is different, however, where the alien's primary
source of earned income will be derived from an activity unrelated to
his or her field of extraordinary ability. In such a case, the alien
may, in fact, be competing primarily with U.S. workers engaged in the
unrelated field, thereby necessitating a test of the labor market and a
labor certification. While the Service recognizes that aliens having
extraordinary ability may reasonably be expected to engage in secondary
activities within their field of extraordinary ability, whether or not
for pay, the Service is responsible for ensuring that the alien's entry
will not have an adverse impact on the U.S. labor market. The Service,
therefore, proposes that the alien's primary source of earned income
must come from the specific activity or activities for which he or she
seeks priority worker classification.
Outstanding Professors and Researchers
Since the implementation of IMMACT, there has been some confusion
over the role of various types of evidence listed in 8 CFR 204.5(i)(3).
As in the case of the regulations governing petitions for aliens of
extraordinary ability, the evidence listed is intended to be a
guideline for the petitioner and the Service to determine whether the
beneficiary stands apart in the academic community through eminence and
distinction based on international recognition. See 56 FR 30703-30714
dated July 5, 1991. This list of evidence makes the adjudicative
process easier for both the petitioner and the Service. The fact that
the beneficiary may meet two of the listed criteria does not
necessarily mean that he or she has the international recognition to be
considered an outstanding researcher or professor. The Service
adjudicator must still determine whether the alien is recognized
internationally as outstanding in the academic field specified in the
petition. The Service, therefore, proposes to amend this regulation to
specifically state that having two types of the listed evidence does
not compel a finding that the beneficiary is recognized internationally
as outstanding.
The Service has also reviewed the five types of evidence listed in
8 CFR 204.5(i)(3)(i). The Service has determined that two of the
paragraphs need to be reworded. Paragraph (i)(3)(i)(C) states that the
petitioner may submit published material written by others about the
beneficiary's work in the academic field. Some petitioners have
interpreted this paragraph to mean that any reference to the
beneficiary's work, including a reference in a footnote or
bibliography, meets the evidentiary criteria of this paragraph. The
Service proposes to amend the language of paragraph (i)(3)(i)(C) to
require that the publication discuss or analyze the beneficiary's work
in the academic field. A short reference to the beneficiary's work in a
professional publication does not demonstrate that he or she is
recognized as outstanding. A much better indicator of the importance of
the alien's work in the academic community is a thorough discussion or
analysis of the beneficiary's work.
In 8 CFR 204.5(i)(3)(i)(D), the petitioner may submit evidence of
the beneficiary's participation, either individually or on a panel, as
the judge of the work of others in the same or related academic field.
The Service believes that most college or university professors are
involved in judging the work of others, and the Service has found that
meeting the criteria under this paragraph is not a good indicator of
whether the beneficiary is recognized as outstanding. Judging the work
of other authorities and experts in the alien's academic field is a
better measure of the beneficiary's international recognition.
Therefore, the Service proposes to amend the paragraph to specify that
the alien can meet the criteria in paragraph (i)(3)(i)(D) by submitting
evidence that the beneficiary has judged the work of other professors,
researchers, and Ph.D. candidates in the alien's academic field.
Section 203(b)(1)(B)(iii)(III) of the Act allows a private employer
to petition an outstanding professor or researcher to conduct research
if the employer has at least three persons engaged in research
activities and has achieved documented accomplishments in the academic
field. One issue that has arisen is whether a government agency which
conducts research can petition an outstanding professor or researcher.
It is the position of the Service that some government agencies such as
the National Institutes of Health and the Food and Drug Administration
should be able to file petitions on behalf of outstanding alien
researchers, who may have valuable contributions to bring to the
agency's research efforts. In order to allow for government agencies to
sponsor certain outstanding researchers, the Service proposes to amend
the regulation to include government agencies on the list of United
States employers.
Multinational Executives and Managers
Section 203(b)(1)(C) of the Act provides for the immigration of
multinational executives and managers if the alien, in the 3 years
preceding the time of his or her application for classification and
admission into the United States, has been employed for at least 1 year
in a managerial or executive position abroad with the same
[[Page 29776]] employer, or a subsidiary or affiliate thereof. To
accommodate managers or executives who have been in the United States
in nonimmigrant status for over 3 years, 8 CFR 204.5(j)(3)(i)(B)
provides that an alien, already working in the Unites States for the
same employer or a subsidiary or affiliate of the firm or corporation
which employed the alien abroad as a manager or executive during at
least one of the 3 years preceding his or her entry as a nonimmigrant,
would qualify as a multinational executive or manager. In the case of
an alien who is currently outside the United States, he or she must
have been employed abroad by an affiliate, branch, or subsidiary of the
petitioner as a manager or executive for at least 1 year during the 3-
year period immediately preceding the filing of the petition. See 8 CFR
204.5(j)(3)(i)(A). Section 204.5(j)(3) of the regulations inadvertently
omitted situations where the alien was in lawful nonimmigrant status
while working for an unrelated employer, but worked for a qualifying
company abroad in a managerial or executive position during at least 1
of the 3 years preceeding the filing of the petition. The fact that the
alien is working in the United States should not preclude him or her
from qualifying as a priority worker. Aliens who have worked for an
unrelated employer should be treated the same as aliens who are outside
the United States for purposes of eligibility. Accordingly, the Service
proposes to allow U.S. employers to file petitions on behalf of those
aliens for managerial or executive positions.
Advanced Degree Holders and Aliens of Exceptional Ability
The current regulation defines ``exceptional ability'' as a degree
of expertise significantly above that ordinarily encountered in the
sciences, arts, or business. See 8 CFR 204.5(k)(2). The regulation at 8
CFR 204.5(k)(3)(ii) lists evidence which needs to be presented to
establish exceptional ability. Since the Implementation of IMMACT,
there has been some confusion over the role of various types of
evidence listed in the regulation. As in the cases of aliens of
extraordinary ability and outstanding professors and researchers, the
Service intended that this list of evidence be a guideline for the
petitioner and the Service to determine exceptional ability. Providing
a list of possible types of evidence makes the adjudicative process
simpler for both the petitioner and the Service. The fact that an alien
may meet three of the listed criteria does not necessarily mean that he
or she meets the standard of exceptional ability. The Service
adjudicator must still determine whether the alien has a degree of
expertise significantly above that ordinarily encountered in the
sciences, arts, or business. Accordingly, the Service proposes to amend
the regulation to state that meeting three of the evidentiary standards
is not dispositive of whether the beneficiary is an alien of
exceptional ability.
Under section 203(b)(2)(A) of the Act, professionals holding
advanced degrees or their equivalent also qualify for classification
under the employment-based second category. The Joint Explanatory
Statement of the Committee of Conference, made at the time Congress
adopted IMMACT, stated that the equivalent of an advanced degree is ``a
bachelor's degree with at least five years progressive experience in
the professions.'' See H.R. Rep. No. 101-955, 101st Cong., 2d Sess. 121
(1990). Accordingly, the current regulation states that the job offer
portion of the labor certification application (Form ETA-750) must
demonstrate that the job requires a professional holding an advanced
degree or equivalent. See 8 CFR 204.5(k)(4)(i). Since the Service began
adjudicating petitions under the current regulation, some petitioners
have interpreted this regulation to allow job offers which require only
a bachelor's degree, plus 5 years of progressive experience, but not an
advanced degree. This interpretation does not comport with the language
of section 203(b)(2)(A) of the Act which, on its face, states that a
job offer must require an advanced degree or equivalent in order to
qualify the beneficiary as an advanced degree holder. Requiring a
bachelor's degree and 5 years of experience does not equate to a
requirement that the beneficiary hold an advanced degree. In order for
the beneficiary to qualify as an advanced degree holder, the job
offered in the labor certification must also accept an advanced degree
as a minimum job requirement. Therefore, the Service proposes that the
regulation be amended to state that if the job offer portion of the
labor certification requires a person holding a bachelor's degree,
followed by at least 5 years of experience in the specialty, it must
also accept an advanced degree holder in the same field as meeting the
minimum job requirements.
Section 212(a)(5)(C) of the Act states that a petition filed under
the employment-based second category requires a labor certification.
Section 203(b)(2)(B) of the Act provides that ``the Attorney General
may, when he deems it to be in the national interest, waive the
requirement * * * that an alien's services in the sciences, arts,
professions, or business are sought by an employer in the United
States.'' The Service has determined that a waiver of the job offer
constitutes a waiver of the labor certification. See 56 FR 60897-60913
dated November 29, 1991. Soon after the promulgation of the final rule
on employment-based immigrant petitions in November of 1991, the
President signed the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991 (MTINA). The MTINA added
professionals to the list of aliens who are eligible to request a
national interest waiver of the labor certification. Accordingly, the
Service proposes to amend 8 CFR 204.5(k)(4)(ii) to add professionals to
the list of aliens whom the service center director can exempt from the
labor certification requirement.
After the Service issued a proposed regulation on employment-based
immigrant petitions at 56 FR 30703-30714 on July 5, 1991, several
commenters suggested that the Service define the term ``national
interest.'' The Service decided not to define the term ``national
interest'' in the final regulation. See 56 FR 60897-60913 dated
November 29, 1991. At that time, the Service believed that it was
appropriate to leave the application of the national interest waiver as
flexible as possible and that each case should be judged on its own
merits.
Since the promulgation of the final regulation on November 29,
1991, the Service has received numerous petitions filed under the
employment-based second category, which request a waiver of the labor
certification requirement in the national interest. Since IMMACT became
effective in 1991, the Service has been flexible in approving national
interest waivers in a variety of situations. The Administrative Appeals
Unit (AAU) has issued a number of non-precedent decisions on the
national interest waiver. The AAU has listed some factors which relate
to national interest. See Matter of ________, EAC 92 091 50126 (July
21, 1992). They include improving the U.S. economy, improving
conditions of U.S. workers, improving education and training of
children and under-qualified workers, improving health care, providing
affordable housing, improving the environment, and a request from an
interested government agency. Although these factors provide a list of
national goals or objectives, they do not provide much guidance to the
public or to Service adjudicators with respect to which aliens merit a
national interest waiver.
Without specific guidelines, the service centers have found it
difficult to [[Page 29777]] determine which aliens should qualify for
the waiver. It has proven to be very difficult to determine on a case-
by-case basis which petitions deserve a ``national interest'' waiver.
The Service believes that, absent published general guidelines, it is
very difficult to adjudicate consistently national interest waivers.
Based on the Service's experience in adjudicating national interest
waivers since 1991, the Service proposes that the petitioner establish
four elements to qualify for a national interest waiver. These elements
will allow for greater consistency in adjudication of national interest
waivers as well as provide guidance to the public. They do not limit,
or attempt to define, which types of activities are in the national
interest. The four elements do, however, provide common indicators of
whether the alien's admission to the United States would benefit the
national interest.
The first element is that the alien must have at least 2 years of
experience in the area in which he or she will benefit the United
States. The Service believes that requiring some background in the area
in which the alien will benefit the national interest is an appropriate
measure of whether the alien has the commitment to pursue the activity
which will promote a national interest, as stated in the petition.
Unlike an alien who immigrates based on a labor certification, an alien
who immigrates based on a national interest waiver does not require a
specific job offer and a sponsoring employer. It is, therefore, more
difficult in such waiver cases for the Service to determine whether the
alien has the commitment to engage in the activity which will promote a
national interest following his or her admission as an immigrant.
To illustrate this problem, the Service notes that it has received
a number of petitions, accompanied by a request for a national interest
waiver, from professionals who recently received an advanced degree and
claim that they will be engaged in activities which will be in the
national interest. One example is an attorney who recently passed the
state bar examination and promises to devote some of his practice to
representing indigent persons. Another example is someone who has just
graduated from medical school and states that he or she will practice
in a medically under-served area. Such petitions have been problematic
for the Service to adjudicate. The aliens claim they will be engaged in
activity in which they do not have a ``track record.'' Under the
current regulations, the Service has no means to determine whether the
alien is truly committed to performing the activity which promotes the
national interest. The Service believes that it is appropriate to
require the alien to have 2 years of full-time experience in the field
of endeavor which will promote the national interest. The Service does
not believe, however, that the required period of experience should
include time in which the alien was a full- or part-time student. It is
the position of the Service that 2 years of full-time experience is the
minimum period of time to measure the alien's commitment to work in an
area which will promote the national interest. In addition, this 2-year
full-time experience requirement is necessary to determine whether the
alien has sufficient qualifying experience in the field to play a
significant role in an activity which will prospectively benefit the
United States.
The second element is that the national interest waiver not be
based purely on the alien's ability to ameliorate a local labor
shortage. Although the legislative history of IMMACT and MTINA does not
address the meaning of the term ``national interest,'' Congress clearly
stated, in section 212(a)(5)(C) of the Act, that all aliens who
immigrate under the second and third employment-based categories
require a labor certification. Section 203(b)(2)(B) of the Act allows
the Attorney General to waive the requirement that an alien's services
in the sciences, arts, professions, or business be sought by an
employer in the United States if it is in the national interest. By
enacting the national interest waiver, Congress created an exception to
the general labor certification requirement. It would, therefore, be
superfluous to allow an alien to be exempted from the labor
certification requirement based purely on a shortage of available U.S.
workers. Congress has delegated to the Department of Labor the
determination of whether local labor shortages exist. See section
212(a)(5)(A) of the Act. This does not mean, however, that the
existence of a national labor shortage would not be relevant to whether
an alien should be granted a national interest waiver. The fact that
the alien has skills which are not available in the overall U.S. labor
market may be a relevant consideration in deciding whether to grant a
national interest waiver. However, should the Service determine that
the basis of the request for a national interest waiver is solely to
alleviate a local labor shortage, a labor certification will be the
appropriate basis to qualify for an employment-based petition.
The plain language of the term ``national interest'' supports the
Service's position on local labor shortages. The dictionary defines the
word ``national'' as ``pertaining to a whole nation'' or ``concerning
or encompassing an entire nation.'' See The Random House College
Dictionary (Rev. Ed. 1975). If the basis of the request for a national
interest waiver is merely to solve a labor shortage in a limited area
of the country, the impact of the alien's employment cannot be said to
pertain directly to the entire Nation. There must be an impact on the
Nation as a whole.
In conclusion, the Service has determined that local labor market
concerns, standing alone, are not an appropriate basis for a national
interest waiver, which exempts the alien from the normal labor
certification requirement. Accordingly, the Service proposes to
preclude aliens from obtaining a national interest waiver based purely
on a local labor shortage.
The third element in determining whether the alien should be given
a national interest waiver is that the alien will be involved in an
undertaking which will substantially benefit prospectively the United
States. This requirement follows the statutory language of section
203(b)(2)(B) of the Act, which makes it clear that the waiver request
should be premised on an activity which will further an important
national goal. The emphasis of this element is on the particular
national goal the alien's proposed undertaking will promote.
The fourth element in determining whether the labor certification
and job offer should be waived in the national interest is that the
alien play a significant role in that activity which will prospectively
benefit the United States. The Service has received a large number of
requests for a national interest waiver from aliens who play relatively
minor roles in an important project or activity which affects the
national interest. One example is an alien who is an entry-level
engineer who works for a company which conducts important research into
new sources of energy, such as fusion. Another example is a physician
who claims that he or she will work in primary-care, which the
President's health care proposal emphasizes. In both examples, the
alien states that he or she will be working in a field which will
promote a national goal or cause. While this may be true, merely
working in an area which benefits the national interest is not a
sufficient basis to grant a national interest waiver. The alien must
also establish that he or she will [[Page 29778]] play a significant
role in advancing the particular national interest. In other words, the
alien has the burden of proof that he or she will have a significant
impact on an activity which will benefit the national interests of the
United States.
This proposed regulation will serve as a guideline for aliens who
apply for a national interest waiver. It emphasizes both the manner in
which the alien will contribute to the national interest, as well as
the activity or employment itself. The Service believes that the alien
must show that he or she will play a significant role in an undertaking
which will prospectively benefit the United States.
Skilled Workers, Professionals, and Other Workers
The employment-based third category under section 203(b)(3) of the
Act has subcategories for professionals, skilled workers, and unskilled
workers. Although there are 40,000 immigrant visa numbers allocated
annually to the employment-based third category, section 203(b)(3)(B)
of the Act limits the annual admissions of unskilled workers to 10,000.
In order to qualify as a skilled worker, the job offered must require
at least 2 years of training or experience. Under the current
regulation, the Service determines whether a job offered is skilled or
unskilled based on the minimum experience or training requirements
which the prospective employer places on the job, as certified by the
Department of Labor on Form ETA 750. See 8 CFR 204.5(l)(4). Block
number 14 on Form ETA 750A (Offer of Employment) lists the minimum
experience for a worker to satisfactorily perform the job offered. As a
matter of practice, the Department of Labor permits the minimum
experience required to satisfactorily perform the job offered to be in
the job offered or in a related occupation.
The Service has received a number of petitions in which the minimum
experience requirement in a related occupation is 2 years or more and
the minimum experience requirement in the job offered is less than 2
years. This regulation proposes to place the beneficiary into the
unskilled category if the experience requirement on Block 14 on Form
ETA 750A for the job offered shows less than 2 years of experience. To
do otherwise would mean that a job applicant could meet one of the
minimum job offer requirements with less than 2 years of experience in
the job itself. The Service has determined that focusing on the
experience required for the job offered comports with the language of
section 203(b)(3)(A)(i) of the Act which defines skilled workers as
qualified immigrants who are capable of performing skilled labor,
requiring at least 2 years of experience or training. Accordingly, the
Service proposes to add a sentence to emphasize that a worker will be
considered unskilled if a job applicant can meet the minimum experience
requirements in the job offered with less than 2 years of experience.
Religious Workers
Section 151(a) of IMMACT created a new immigrant category for
ministers, religious professionals, and other religious workers.
Section 101(a)(27)(C)(iii) of the Act provides that in order to qualify
under this category, a minister must have been carrying on the vocation
of minister during the previous 2 years. The Act also requires
professional and other religious workers to carry on the religious work
during the previous 2 years. The regulation currently states that
ministers and religious workers must have been performing the vocation
of minister or religious work continuously, either abroad or in the
United States, for at least the 2-year period immediately preceding the
filing of the petition. See 8 CFR 204.5(m)(1). The Service proposes to
amend the regulation to expressly require that the 2 years of
experience be full-time.
Before Congress enacted IMMACT in 1990, section 101(a)(27)(C) of
the Act classified ministers as special immigrants. Under this
category, the alien had to establish that he was ``an immigrant who
continuously for at least two years immediately preceding the time of
his application for admission to the United States has been, and who
seeks to enter the United States solely for the purpose of carrying on
the vocation of minister of a religious denomination.'' This language
is virtually identical with the current statute, except that Congress
added a category for religious workers. The legislative history
indicates that Congress did not intend to overrule pre-existing case
law interpreting the experience requirement under former section
101(a)(27)(C) of the Act. See H. Rep. No. 723, 101st Cong., 2nd Sess.
75 (1990). In Matter of Faith Assembly Church, 19 I&N Dec. 391, 393
(Comm. 1986), the Commissioner determined that the term ``solely''
applies to both the alien's proposed ministerial activities as well as
to the alien's previous experience as a religious minister. Because of
the legislative history and the similarity in the statutory language,
it is appropriate for the Service to require that the 2 years of
experience be full-time. In addition, this interpretation is consistent
with the statutory framework, under which IMMACT also created a
nonimmigrant category for religious workers. See section 101(a)(15)(R)
of the Act. The 2-year experience requirement is the only difference
between the nonimmigrant and immigrant religious worker category.
Compare id with section 101(a)(27)(C)(iii) of the Act. Both categories
require 2 years of membership in the religious denomination. Since
membership in a religious denomination may entail some part-time
volunteer work, part-time employment should not suffice to qualify the
alien as a special immigrant religious worker. Permitting such part-
time employment to count towards meeting the experience requirement for
immigrant religious workers would render the distinction between the
two categories, and, therefore, the experience requirement itself,
superfluous.
Accordingly, the Service proposes to amend the regulation to
expressly require that the 2 years of experience be full-time. In order
for the qualifying experience to be considered full-time, the alien
must have worked in a qualifying religious vocation or occupation for
at least 35 hours per week or more, depending on what constitutes
``full-time'' experience in the particular religious occupation or
vocation.
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Commissioner of the
Immigration and Naturalization Service certifies that this rule will
not, if promulgated, have a significant adverse economic impact on a
substantial number of small entities. This proposed rule merely
modifies existing regulations for employment-based immigration. It will
not significantly change the number of persons who immigrate to the
United States based on employment-based petitions. Any impact on small
business entities will be, at most, indirect and attenuated.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, Sec. 3(f), Regulatory
Planning and Review, and the Office of Management and Budget has waived
its review process under section 6(a)(3)(A). [[Page 29779]]
Executive Order 12612
The regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12606
The Commissioner of the Immigration and Naturalization Service
certifies that she has addressed this rule in light of the criteria in
Executive Order 12606 and has determined that it will have no effect on
family well-being.
List of Subjects in 8 CFR Part 204
Administrative practice and procedure, Aliens, Employment,
Immigration, Forms.
Accordingly, part 204 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 204--IMMIGRANT PETITIONS
1. The authority citation for part 204 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255; 8 CFR part 2.
2. In Sec. 204.5, paragraph (c) is revised to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(c) Filing petition. Any United States employer desiring and
intending to employ an alien may file a petition for classification of
the alien under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or
203(b)(3) of the Act. An alien, or any person in the alien's behalf,
may file a petition for classification under section 203(b)(1)(A) or
203(b)(4) of the Act (as it relates to special immigrants under section
101(a)(27)(C) of the Act). For purpose of this part, a United States
employer must be a person who is a United States citizen or permanent
resident, a firm, corporation, contractor, or other association or
organization in the United States which engages a person to work in the
United States, which has an employer-employee relationship with respect
to employees as indicated by the fact that it may hire, pay, fire,
supervise, or otherwise control the work of such employee.
* * * * *
3. In Sec. 204.5, paragraph (d) is amended by adding the following
sentence immediately after the first sentence, to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(d) Priority date. * * * If the United States employer substitutes
another alien on a labor certification, the priority date shall be the
date the employer requests the substitution. * * *
* * * * *
4. In Sec. 204.5, paragraph (e) is amended by revising the third
sentence to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(e) Retention of section 203(b)(1), (2), or (3) priority date.--* *
* A petition revoked pursuant to 8 CFR 205.2 for fraud or
misrepresentation will not confer a priority date, nor will any
priority date be established as a result of a denied petition. * * *
* * * * *
5. In Sec. 204.5, paragraph (f) is revised to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(f) Maintaining the priority date of a third or sixth preference
petition filed prior to October 1, 1991--Any petition filed before
October 1, 1991, and approved on any date, to accord status under
section 203(a)(3) or 203(a)(6) of the Act, as in effect before October
1, 1991, shall be deemed a petition approved to accord status under
section 203(b)(2) or within the appropriate classification under
section 203(b)(3), respectively, of the Act as in effect on or after
October 1, 1991, provided that the alien applies for an immigrant visa
or adjustment of status within the two-year period following approval
of the petition during which an immigrant visa is continuously
available for his or her use.
* * * * *
Sec. 204.5 [Amended]
6. Section 204.5(g)(2) is amended in the last sentence by adding
the phrase ``payroll records, W-2 forms,'' immediately after the phrase
``bank account records,''.
7. In Sec. 204.5, paragraphs (h) through (n) are redesignated as
paragraphs (i) through (o), respectively, and a new paragraph (h) is
added to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(h) Validity of section 203(b) petitions and labor certifications--
(1) A petition approved pursuant to section 203(b) of the Act is valid
indefinitely unless revoked under section 205 of the Act. A labor
certification is valid until the alien immigrates or adjusts status
under an employment-based petition based on the labor certification,
unless there is a finding by the Service or the State Department that
the labor certification was obtained through fraud or a material
misrepresentation.
(2) Changes in job location--(1) Non-schedule A labor
certificatons. A labor certification is valid only for the area within
normal commuting distance of the site of the original offer of
employment. Any location within a Metropolitan Statistical Area is
deemed to be within normal commuting distance. If there is a change in
job location after a Form I-140 Immigrant Petition for Alien Worker has
been approved, the petitioner shall file a new Form I-140 petition with
the service center having jurisdiction over the intended place of
employment.
(ii) Schedule A labor certifications. A Schedule A labor
certification is valid anywhere in the United States.
(3) Successorship in interest. If there has been a successor in
interest to the original petitioning employer, the Service will
reaffirm the validity of the labor certification or previously approved
Form I-140 petition for the new employer. For purposes of this
paragraph, to be a successor in interest, the new employer must have
substantially assumed the duties, rights, obligations, and assets of
the original employer. In addition, the new employer must offer the
same wages and working conditions to its employees, offer the
beneficiary the same job as stated in the labor certification, and
continue to operate the same type of business as the original employer.
The new employer must submit a Form I-140 petition with the service
center having jurisdiction over intended place of employment along with
evidence that it is a successor in interest and documentation showing
the change in ownership and ability to pay the wage offered. If the
Service did not approve a petition filed by the original employer, the
new employer must also establish that the original employer had the
ability to pay the proffered wage when the labor certification was
submitted.
* * * * *
8. In Sec. 204.5, newly redesignated paragraphs (i)(4) and (i)(5)
are revised to read as follows: [[Page 29780]]
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(i) * * *
(4) If the above standards do not readily apply to the
beneficiary's occupation, the petitioner may submit comparable evidence
to establish the beneficiary's eligibility. Meeting three of the
evidentiary standards listed in paragraph (i)(3) of this section is not
dispositive of whether the beneficiary is an alien of extraordinary
ability. The petitioner has the burden of proof to establish that he or
she is an alien of extraordinary ability.
(5) No offer of employment required. Neither an offer of employment
in the United States nor a labor certification is required for this
classification; however, the petition must be accompanied by clear
evidence that the alien is coming to the United States to continue work
in the area of expertise. Such evidence may include letter(s) from
prospective employer(s), evidence of prearranged commitments such as
contracts, or a statement from the beneficiary detailing plans on how
he or she intends to continue his or her work in the United States. The
alien's primary source of earned income must come from the specific
activity or activities for which he or she seeks classification as an
alien of extraordinary ability.
* * * * *
9. Section 204.5 is amended by:
a. Revising newly redesignated paragraph (j)(3)(i) introductory
text;
b. Revising newly redesignated paragraph (j)(3)(i) (C) and (D); and
by
c. Revising the first sentence in newly redesignated paragraph
(j)(3)(iii)(C), to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(j) * * *
(3) * * *
(i) Evidence that the professor or researcher is recognized
internationally as outstanding in the academic field specified in the
petition. Such evidence shall consist of at least two of the following.
Meeting two of the following evidentiary standards listed in paragraph
(j)(3)(i) of this section is not dispositive of whether the beneficiary
is recognized internationally as outstanding in the academic field
specified in the petition. The petitioner has the burden of proof to
establish that the beneficiary is an outstanding researcher or
professor:
* * * * *
(C) Published material in professional publications written by
others discussing or analyzing the alien's work in the academic field.
Such material shall include the title, date, and author of the
material, and any necessary translation;
(D) Evidence of the alien's participation, either individually or
on a panel, as the judge of the work of other professors, researchers,
or Ph.D. candidates in the same or related academic field;
* * * * *
(iii) * * *
(C) A department, division, or institute of a private employer or a
state, local, or Federal Government agency offering the alien a
permanent research position in the alien's academic field. * * *
* * * * *
10. In Sec. 204.5, newly redesignated paragraph (k)(3)(i) is
amended by redesignating paragraphs (k)(3)(i) (C) and (D) as paragraphs
(k)(3)(i) (D) and (E) respectively; and by adding a new paragraph
(k)(3)(i)(C) to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(k) * * *
(3) * * *
(i) * * *
(C) If the alien is already in the United States working for an
employer which is not the same employer or a subsidiary or affiliate of
the entity by which the alien was employed overseas, in the three years
preceding the filing of the petition, the alien has been employed
outside the United States for at least one year in a managerial or
executive capacity by a firm or corporation, or other legal entity, or
by an affiliate or subsidiary of such a firm or corporation or other
legal entity;
* * * * *
11. In Sec. 204.5, newly redesignated paragraphs (l)(1),
(l)(3)(iii), and (l)(4) are revised to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(l) Aliens who are members of the professions holding advanced
degrees or aliens of exceptional ability. (1) Any United States
employer may file a petition on Form I-140 for classification of an
alien under section 203(b)(2) of the Act as an alien who is a member of
the professions holding an advanced degree or an alien of exceptional
ability in the sciences, arts, or business. If the alien is seeking an
exemption from the requirement of a job offer in the United States
pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone
in the alien's behalf, may be the petitioner.
* * * * *
(3) * * *
(iii) If the standards in paragraph (l)(3) do not readily apply to
the beneficiary's occupation, the petitioner may submit comparable
evidence to establish the beneficiary's eligibility. Meeting three of
the evidentiary standards listed in paragraph (l)(3)(ii) of this
section is not dispositive of whether the beneficiary is an alien of
exceptional ability. The petitioner has the burden of proof to
establish that the alien is an alien of exceptional ability.
(4) Labor certification or evidence that the alien qualifies for
Labor Market Information Pilot Program--(i) General. Every petition
under this classification must be accompanied by an individual labor
certification from the Department of Labor, by an application for
Schedule A designation (if applicable), or by documentation to
establish that the alien qualifies for one of the shortage occupations
in the Department of Labor's Labor Market Information Pilot Program. To
apply for Schedule A designation or to establish that the alien's
occupation is within the Labor Market Information Program, a fully
executed uncertified Form ETA-750 in duplicate must accompany the
petition. The job offer portion of the individual labor certification,
Schedule A application, or Pilot Program application must demonstrate
that the job requires a professional holding an advanced degree or the
equivalent, or an alien of exceptional ability. If the job offer
portion of the labor certification requires a baccalaureate degree or
foreign equivalent degree followed by at least five years of
progressive post-baccalaureate experience in the specialty, it must
also provide that an advanced degree holder may meet the minimum job
requirements.
(ii) Exemption from job offer. The director may exempt the
requirement of a job offer, and thus of a labor certification, for
aliens of exceptional ability in the sciences, arts, or business and
members of the professions if exemption would be in the national
interest.
(A) To show that such exemption would be in the national interest,
the petitioner must establish the following:
(1) The alien has at least two years of full-time experience in the
activity in which he or she will benefit the United States;
(2) The alien's request for a waiver of the labor certification
requirement is not based purely on a local labor shortage;
(3) The alien will engage in an undertaking which will
substantially benefit prospectively the United States;
and [[Page 29781]]
(4) The alien will play a significant role in the undertaking
described in paragraph (l)(4)(ii)(A)(3).
(B) To apply for the exemption, the petitioner must submit Form
ETA-750B, Statement of Qualifications of Alien, in duplicate, as well
as evidence to support the claim that such exemption would be in the
national interest.
* * * * *
12. In Sec. 205.5, newly redesignated paragraph (m)(4) is revised
to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(m) * * *
(4) Differentiating between skilled and other workers. The
determination of whether a worker is a skilled or other worker will be
based on the requirements of training and/or experience placed on the
job by the prospective employer, as certified by the Department of
Labor. A worker will be considered unskilled if the prospective
employer's minimum experience requirement, as certified by the
Department of Labor, indicates that less than two years of experience,
either in the job offered or in a related occupation, is required. In
the case of a Schedule A occupation or a shortage occupation within the
Labor Market Pilot Program, the petitioner will be required to
establish to the director that the job is a skilled one, i.e., one
which requires at least two years of training and/or experience.
* * * * *
Sec. 204.5 [Amended]
13. In Sec. 204.5, newly redesignated paragraph (n)(1) is amended
in the fourth sentence by adding the phrase ``on a full-time basis''
immediately after the phrase ``or other work''.
14. In Sec. 204.5, newly redesignated paragraph (n)(3)(ii)(A) is
amended by adding the phrase ``full-time'' between the words ``of'' and
``experience''.
15. In Sec. 204.5, newly redesignated paragraph (n)(4) is amended
in the second sentence by adding the phrase ``and will be working for
the religious organization on a full-time basis'' immediately after the
term ``or solicitation of funds for support''.
16. In Sec. 204.5, newly redesignated paragraph (o)(1) is revised
to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(o) Closing action--(1) Approval. An approved employment-based
petition will be forwarded to the Department of State National Visa
Center. If the petition indicates that the alien will apply for
adjustment to permanent residence in the United States, the approved
petitions will be retained by the Service for consideration with the
application for permanent resident (Form I-485).
* * * * *
Sec. 204.5 [Amended]
17. In Sec. 204.5, newly redesignated paragraph (o)(3) is removed.
Dated: March 3, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 95-13806 Filed 6-5-95; 8:45 am]
BILLING CODE 4410-10-M