[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]
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