Imagini ale paginilor
PDF
ePub

nish an advisory opinion concerning the qualifications of the beneficiary of a petition under section 203(a) (3) or (6) of the Act.

(4) Certification under section 212 (a)(14). No third or sixth preference petition shall be approvable unless it is supported by a valid labor certification issued under section 212(a)(14) of the Act. An alien whose occupation is currently listed in Schedule A (20 CFR Part 656) will be considered as having obtained a certification under section 212(a)(14) of the Act upon determination by the district director that the alien is qualified for and will be engaged in such occupation. In the case of an alien whose occupation is currently listed in Schedule B, the Secretary of Labor has announced that the determination and certification required by section 212(a)(14) of the Act cannot now be made (20 CFR Part 656). In the case of any other alien, his employer or prospective employer may apply for certification under section 212(a)(14) of the Act by submitting properly executed Statement of Qualifications of Alien and the Job Offer for Alien Employment forms together with the documentary evidence required by the instructions for completion of the forms, to the local office of the State Employment Service serving the area of intended employment. Information concerning the categories of employment listed in Labor Department Schedules (20 CFR Part 656) may be obtained from principal offices of the Service, from State Employment Services offices and from United States consular offices.

(f) Certification of documents by attorneys. A copy of a document submitted in support of a visa petition filed pursuant to section 204 of the Act and this part may be accepted, though unaccompanied by the original, if the copy bears a certification by an attorney typed or rubberstamped in the following language:

I certify that I have compared this copy with its original and it is a true and complete copy.

[blocks in formation]

However, the original document shall be submitted if submittal is requested by the Service.

[30 FR 14773, Nov. 30, 1965, as amended at 31 FR 5118, Mar. 30, 1966; 32 FR 852; Jan. 25, 1967; 32 FR 9624, July 4, 1967; 32 FR 10433, July 15, 1967; 34 FR 1008, Jan. 23, 1969; 35 FR 13828, Sept. 1, 1970; 36 FR 5835, Mar. 30, 1971; 36 FR 8294, May 4, 1971; 36 FR 11903, June 23, 1971; 36 FR 20151, Oct. 16, 1971; 40 FR 6765, Feb. 14, 1975; 41 FR 11015, Mar. 16, 1976; 41 FR 11171, Mar. 17, 1976; 41 FR 55848, Dec. 23, 1976; 42 FR 3627, Jan. 19, 1977]

§ 204.3 Disposition of approved petitions.

If the beneficiary of an approved petition will apply to an American consulate for a visa, the approved petition shall be forwarded to the consulate designated by the petitioner. When the beneficiary of an approved petition will file an application for adjustment of status under section 245 of the Act, the approved petition will be retained by the Service for consideration in connection with that application.

[30 FR 14775, Nov. 30, 1965]

§ 204.4 Validity of approved petitions.

(a) Relative petitions. Unless revoked pursuant to section 203(e) of the Act or Part 205 of this chapter, the approval of a petition to classify an alien as a preference immigrant under section 203(a) (1), (2), (4), or (5) of the Act, or as an immediate relative under section 201(b) of the Act, shall remain valid for the duration of the relationship to the petitioner, and status, as established in the petition.

(b) Petitions under sections 203(a) (3) and (6). Unless revoked pursuant to section 203(e) of the Act or Part 205 of this chapter, the approval of a petition to classify an alien as a preference immigrant under section 203(a) (3) or (6) of the Act shall remain valid for as long as the supporting labor certification is valid and unexpired, provided there is no change in the respective intentions of the prospective employer and the beneficiary that the beneficiary will be employed by the employer in the capacity indicated in the supporting job offer. The approval of a petition to classify an alien under sec

(e) Evidence of eligibility for thirdor sixth-preference classification-(1) General. The documentary evidence which the petitioner must submit to establish the beneficiary's eligibility under section 203(a) (3) or (6) of the Act shall include Statement of Qualifications of Alien and the Job Offer for Alien Employment forms as provided in § 204.1(c), and any documents required to be presented with those forms. If the alien's eligibility is based in whole or in part on higher education, a certified copy of his school record shall be submitted. The record must show the period of attendance, major field of study, and the degrees or diplomas awarded. If the alien has received a license or other official permission to practice his profession, the license or other official permit to practice must also be submitted. If the alien's eligibility is based on a claim of exceptional ability in the sciences or the arts, documentary evidence supporting the claim must be submitted by the petitioner. Such evidence may attest to the universal acclaim and either the national or international recognition accorded to the alien; that he has received a nationally or internationally recognized prize or award or won a nationally or internationally recognized competition for excellence for a specific product or performance or for outstanding achievement; or that he is a member of a national or international association of persons which maintains standards of membership recognizing outstanding achievement as judged by recognized national or international experts in a specific discipline or field of endeavor. An affidavit attesting to an alien's exceptional ability in the sciences or the arts must set forth the name and address of the affiant, state how he has acquired his knowledge of the alien's qualifications, and must describe in detail the facts on which the affiant bases his assessment of the alien's qualifications. If material published by or about the alien is submitted, it must be accompanied by information as to the date, place, and title of the publication. If the alien's eligibility is based on training or experience, affidavits by the trainers or employers attesting to the training or experience

which they provided to the alien must be submitted by the petitioner. These affidavits must set forth the name and address of the affiant, state how he ac quired his knowledge of the alien's qualifications, state the places where and the dates between which the alien! gained the training or experience, and describe in detail the duties performed by the alien, any tools used, and any j supervision received or exercised by the alien. If such affidavits cannot be obtained, the petitioner shall submit an affidavit by the alien beneficiary attesting to the reasons therefor, and shall also submit other documentary evidence of the alien's qualifications, such as copies of company records or affidavits by persons other than the alien's trainers or employers having personal knowledge of the facts to which the affiants are attesting, setting forth the information specified in the preceding sentence.

(2) Physicians or Surgeons. An alien who is coming to the United States principally to perform services as a member of the medical profession shall not be considered eligible for classification as a third or sixth preference immigrant unless he estab lishes that he is a graduate of a medical school or has qualified to practice medicine in a foreign state; has passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health, Education, and Welfare); and is competent in oral and written English.

(2a) Dentists. An alien dentist shall be considered eligible for classification as a member of the professions if he establishes that he was graduated from a dental school in the United States or Canada, or that he was graduated from a foreign dental school and has obtained a full and unrestricted license to practice dentistry in the country where he obtained his dental education. In any other case the district director may consult with organizations and experts in the dental field for the purpose of obtaining an advisory opinion of the alien's qualifications as a dentist.

(3) Advisory opinion. The district director may request the Employment and Training Administration to fur

nish an advisory opinion concerning the qualifications of the beneficiary of a petition under section 203(a) (3) or (6) of the Act.

re

(4) Certification under section 212 (a)(14). No third or sixth preference petition shall be approvable unless it is supported by a valid labor certification issued under section 212(a)(14) of the Act. An alien whose occupation is currently listed in Schedule A (20 CFR Part 656) will be considered as having obtained a certification under section 212(a)(14) of the Act upon determination by the district director that the alien is qualified for and will be engaged in such occupation. In the case of an alien whose occupation is currently listed in Schedule B, the Secretary of Labor has announced that the determination and certification quired by section 212(a)(14) of the Act cannot now be made (20 CFR Part 656). In the case of any other alien, his employer or prospective employer may apply for certification under section 212(a)(14) of the Act by submitting properly executed Statement of Qualifications of Alien and the Job Offer for Alien Employment forms together with the documentary evidence required by the instructions for completion of the forms, to the local office of the State Employment Service serving the area of intended employment. Information concerning the categories of employment listed in Labor Department Schedules (20 CFR Part 656) may be obtained from principal offices of the Service, from State Employment Services offices and from United States consular offices.

(f) Certification of documents by attorneys. A copy of a document submitted in support of a visa petition filed pursuant to section 204 of the Act and this part may be accepted, though unaccompanied by the original, if the copy bears a certification by an attorney typed or rubberstamped in the following language:

I certify that I have compared this copy with its original and it is a true and complete copy.

[blocks in formation]

However, the original document shall be submitted if submittal is requested by the Service.

[30 FR 14773, Nov. 30, 1965, as amended at 31 FR 5118, Mar. 30, 1966; 32 FR 852; Jan. 25, 1967; 32 FR 9624, July 4, 1967; 32 FR 10433, July 15, 1967; 34 FR 1008, Jan. 23, 1969; 35 FR 13828, Sept. 1, 1970; 36 FR 5835, Mar. 30, 1971; 36 FR 8294, May 4, 1971; 36 FR 11903, June 23, 1971; 36 FR 20151, Oct. 16, 1971; 40 FR 6765, Feb. 14, 1975; 41 FR 11015, Mar. 16, 1976; 41 FR 11171, Mar. 17, 1976; 41 FR 55848, Dec. 23, 1976; 42 FR 3627, Jan. 19, 1977]

§ 204.3 Disposition of approved petitions.

If the beneficiary of an approved petition will apply to an American consulate for a visa, the approved petition shall be forwarded to the consulate designated by the petitioner. When the beneficiary of an approved petition will file an application for adjustment of status under section 245 of the Act, the approved petition will be retained by the Service for consideration in connection with that application.

[30 FR 14775, Nov. 30, 1965]

§ 204.4 Validity of approved petitions.

(a) Relative petitions. Unless revoked pursuant to section 203(e) of the Act or Part 205 of this chapter, the approval of a petition to classify an alien as a preference immigrant under section 203(a) (1), (2), (4), or (5) of the Act, or as an immediate relative under section 201(b) of the Act, shall remain valid for the duration of the relationship to the petitioner, and status, as established in the petition.

(b) Petitions under sections 203(a) (3) and (6). Unless revoked pursuant to section 203(e) of the Act or Part 205 of this chapter, the approval of a petition to classify an alien as a preference immigrant under section 203(a) (3) or (6) of the Act shall remain valid for as long as the supporting labor certification is valid and unexpired, provided there is no change in the respective intentions of the prospective employer and the beneficiary that the beneficiary will be employed by the employer in the capacity indicated in the supporting job offer. The approval of a petition to classify an alien under sec

tion 203(a) (3) or (6) of the Act which had heretofore become invalid solely because of expiration of the period of validity, is hereby reinstated provided the conditions of this paragraph are met.

(c) Subsequent petition by same petitioner for same beneficiary. When a visa petition has been approved, and subsequently a new petition by the same petitioner is approved for the same preference classification in behalf of the same beneficiary, the latter approval shall be regarded as a reaffirmation or reinstatement of the validity of the original petition, except when the original petition has been revoked under section 203(e) of the Act.

(d) Petitions for natives of former Western Hemisphere dependent areas. An approved visa petition which previous to January 1, 1977 granted a preference classification to a beneficiary who was at the time of approval a native of a dependent area in the Western Hemisphere, and which thereafter became inoperative solely because that area became an independent country, shall on and after January 1, 1977 be considered reinstated provided the status and relationship on the basis of which the petition was originally approved continue changed and provided any necessary labor certification remains valid.

un

(e) Revocation. The validity of any petition under this section may be revoked pursuant to the provisions of Part 205 of this chapter prior to the time limitations set forth herein.

[35 FR 7284, May 9, 1970, as amended at 41 FR 55848, Dec. 23, 1976; 42 FR 15302, Mar. 21, 1977]

§ 204.5 Automatic conversion of classification of beneficiary.

(a) By change in beneficiary's marital status. (1) A currently valid petition previously approved to classify the beneficiary as the unmarried son or daughter of a U.S. citizen under section 203(a)(1) of the Act shall be regarded as approved for preference status under section 203(a)(4) of the Act as of the date the beneficiary marries. A currently valid petition previously approved to classify the child of a United States citizen as an immediate relative under section 201(b) of the

Act shall also be regarded as approved for preference status under section 203(a)(4) of the Act as of the date the beneficiary marries.

(2) A currently valid petition classifying the married son or married daughter of a United States citizen for preference status under section 203(a)(4) of the Act shall, upon the presentation of satisfactory evidence of the legal termination of the beneficiary's marriage, be regarded as ap proved for preference status under section 203(a)(1) of the Act or, if the beneficiary is under 21 years of age, for status as an immediate relative under section 201(b) of the Act, as of the date of termination of the mar riage.

(b) By beneficiary's attainment of the age of 21 years. A currently valid petition classifying the child of a United States citizen as an immediate relative under section 201(b) of the Act shall be regarded as approved for preference status under section 203(a)(1) of the Act as of the beneficiary's attainment of his twenty-first birthday if he is still unmarried.

(c) By petitioner's naturalization. Effective upon the date of naturalization of a petitioner who had been lawfully admitted for permanent residence, a currently valid petition ac cording preference status under section 203(a)(2) of the Act to the petitioner's spouse, unmarried son, or unmarried daughter, shall be regarded as approved to accord status as an immediate relative under section 201(b) of the Act to the spouse, and unmarried or unmarried daughter who is under 21 years of age, and to accord preference status under section 203(a)(1) of the Act to the unmarried son or unmarried daughter who is 21 years of age or older.

son

[30 FR 14775, Nov. 30, 1965, as amended at 41 FR 55849, Dec. 23, 1976]

§ 204.6 Effect of changed employment on priority date.

(a) Petition for third preference classification. When the beneficiary of an approved third preference petition no longer intends to accept employment with the prospective employer or the offer of employment is withdrawn, the petition shall be deemed invalid and

the beneficiary shall no longer be entitled to a priority date as of the date of filing of the petition. However, upon submission of a new Job Offer for Alien Employment form, and an individual labor certification under section 212(a)(14) in the case of an occupation not listed in Schedule A, the petition shall be deemed reinstated with the original priority date. The provisions of the paragraph shall not apply when the original petition has been revoked under section 203(e) of the Act.

(b) Petition for sixth preference classification. When a new petition by another employer is approved in behalf of the beneficiary of a previously approved sixth-preference petition, and the beneficiary has accepted or intends to accept employment with the new petitioner, the beneficiary shall no longer be entitled to a priority date as of the date of filing of the original petition and that petition shall be deemed invalid. Instead, his priority date shall be the date of filing of the subsequently approved petition for sixth-preference classification. However, the original petition shall be deemed reinstated and the original priority date shall be restored if the beneficiary returns to the original petitioner's employment or established that he intends upon arrival in the United States to be employed by the original employer as specified in the original petition. The provisions of this paragraph shall not apply when the original petition has been revoked under section 203(e) of the Act.

[41 FR 55849, Dec. 23, 1976]

§ 204.7 Preservation of benefits contained in savings clause of Immigration and Nationality Act Amendments of 1976.

In order to be considered eligible for the benefits of the savings clause contained in section 9 of the Immigration and Nationality Act Amendments of 1976, an alien must show that the facts established prior to January 1, 1977 upon which the entitlement to such benefits was based continue to exist.

[41 FR 55849, Dec. 23, 1976]

[blocks in formation]

§ 205.1 Automatic revocation.

The approval of a petition made under section 204 of the Act and in accordance with Part 204 of this chapter is revoked as of the date of approval if the Secretary of State shall terminate the registration of any beneficiary pursuant to the provisions of section 203(e) of the Act or if any of the following circumstances occur before the beneficiary's journey to the United States commences or, if the beneficiary is an applicant for adjustment of status to that of a permanent resident, before the decision on his application becomes final:

(a) Relative petitions. (1) Upon formal notice of withdrawal filed by the petitioner with the officer who approved the petition.

(2) Upon the death of the petitioner or beneficiary.

(3) Upon the death of the petitioner unless the Attorney General in his discretion determines that for humanitarian reasons revocation would be inappropriate.

(4) Upon the legal termination of the relationship of husband and wife when a petition has accorded status as the spouse of a citizen or lawful resident alien, respectively, under section 201(b), or section 203(a)(2) of the Act.

(5) Upon a child beneficiary reaching the age of 21, when he has been accorded immediate relative status under section 201(b) of the Act; however, such petition is valid for the duration of the relationship to accord preference status under section 203(a)(1) of the Act if the beneficiary remains unmarried, or to accord preference status under section 203(a)(4) of the Act if he marries.

« ÎnapoiContinuă »